Criminal Conviction Discrimination and the Fair Chance Act in New York

Can a New York employer reject you because of a criminal record?

In most cases, no. New York is one of a small number of states that treats a prior criminal conviction as a protected characteristic in employment, not a free-standing reason to say no. Under Correction Law Article 23-A, a public agency or a private employer with ten or more employees may not deny you a job, fire you, or deny you a license because of a conviction unless it can prove one of two things:

1. There is a direct relationship between the offense and the specific duties of the job, or
2. Employing you would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Those are the only two exits. “We have a policy against hiring anyone with a felony” is not one of them, and neither is “the client requires a clean background.” A blanket policy that automatically screens out everyone with a record violates the statute on its face, because it skips the individualized analysis the law requires.

Article 23-A has teeth because of where it plugs in: violating it is itself an unlawful discriminatory practice under the New York State Human Rights Law. You do not sue under the Correction Law alone. You bring a discrimination claim and get the full remedial menu, including back pay, front pay, emotional distress damages, punitive damages, and attorneys’ fees.

What must an employer weigh before saying no?

Eight factors, set out in Correction Law § 753. The employer must consider New York’s stated public policy of encouraging the employment of people with criminal records; the specific duties and responsibilities of the position; the bearing the offense has on your fitness to perform them; the time elapsed since the offense; your age when it occurred; the seriousness of the offense; any evidence of rehabilitation and good conduct you offer; and the employer’s legitimate interest in protecting property and the safety of others.

If you hold a certificate of relief from disabilities or a certificate of good conduct, the statute gives you a presumption of rehabilitation the employer must weigh in your favor.

Two things about this analysis matter in practice. It is individualized. The employer must apply the factors to you and to this job, not to a category. And it must actually happen. In case after case, the employer produces no notes and no evidence that anyone considered anything beyond the line on the report.

Correction Law § 754 gives you the tool to expose that. If you are denied employment because of a conviction, you may request a written statement of the reasons, and the employer must provide it within thirty days. Send that request in writing, and keep proof.

What does the NYC Fair Chance Act add?

If the job is in New York City, the timing rules change completely. The Fair Chance Act, part of the New York City Human Rights Law, applies to employers with four or more employees and makes it unlawful to ask about criminal history at all (on the application, in the interview, or by running a background check) until after a conditional offer of employment has been made. Job postings that advertise a criminal-history limitation are also prohibited.

Once a conditional offer exists and a record surfaces, the employer must run the fair chance process: perform and document the required analysis, give you a written copy of it together with any background report it relied on, and hold the position open for at least three business days from your receipt so you can respond with corrections or evidence of rehabilitation.

Amendments effective in 2021 extended the Act beyond applicants to current employees, so an employer that learns of a conviction or a pending case mid-employment cannot simply terminate you. It has to apply the fair chance factors first. The city law also imposes strict limits on the use of pending arrests and non-convictions.

That is coverage federal law does not come close to. It is also why where the work was performed is one of the first questions we ask.

What about arrests, dismissals, and sealed cases?

Those are off-limits statewide, regardless of employer size. The New York State Human Rights Law makes it unlawful to inquire about or act adversely upon an arrest or criminal accusation that is not currently pending and was resolved in your favor, a conviction that has been sealed, or a youthful offender adjudication. An arrest is an allegation, not a finding.

The Clean Slate Act, effective November 2024, expanded this considerably by automatically sealing many convictions after a waiting period (three years after release or sentencing for misdemeanors, eight years for felonies) provided there are no pending charges and any parole or probation is complete. Sex offenses and most Class A felonies are excluded. Sealing is not the same as expungement, and certain licensed and fingerprint-cleared positions may still lawfully access sealed records. For ordinary private employers, though, a sealed case is not a permissible basis for any decision.

Note the coverage gap this creates. Article 23-A’s conviction protections reach private employers with ten or more employees, while the arrest and sealed-record protections run through the State Human Rights Law’s general employer definition, which since the 2019 amendments reaches employers of any size. For the small contractors, restaurants, medical practices, and staffing agencies that make up much of the Suffolk and Nassau County economy, that distinction can decide the case.

What does this discrimination look like on the job?

The patterns we see repeatedly from Long Island and New York City workers:

• The rescinded offer You accept, resign your current job, then the offer disappears within a day of the background report landing, with no written analysis and no chance to respond.
• The stale conviction A fifteen-year-old drug or theft conviction used to reject you from a job with no cash handling, no vulnerable population, and no connection to the offense.
• The pending case An arrest with nothing proven, and an immediate suspension without pay while the employer “waits for it to resolve.”
• The re-screen Long-tenured employees terminated after a routine periodic background check or a platform’s re-verification surfaces something the employer has known about, or could have known about, for years.
• The licensing denial Home health aides, security guards, real estate salespeople, and contractors denied clearance without the individualized analysis Article 23-A requires of licensing agencies too.
• The staffing agency Placement pulled by an agency or an end client, with each pointing at the other as the decision-maker.
• The wrong record entirely A common-name mismatch, a case reported under the wrong disposition, or a sealed matter that should never have appeared.

Where a firing follows, the claim overlaps with wrongful termination. Where the employer turns on you after you assert your Article 23-A or Fair Chance rights, that is a separate retaliation claim, and retaliation is often easier to prove than the underlying denial, because the timeline is documented.

Why are these cases hard to prove?

The distinctive proof problem here is that the employer rarely has to lie. It simply never states a reason. “We went in another direction” and “you did not clear our screening” are the standard scripts, and unlike an age or race case, there is no stray remark to find, because nobody has to say anything at all.

What replaces the smoking gun is documentation the law forces the employer to generate. Three sources do most of the work:

The § 754 statement A written explanation you are entitled to demand. If it never comes, or if it recites conclusions without applying the eight factors, that silence is evidence.

The NYC fair chance analysis In the five boroughs the employer must hand you its written reasoning before it withdraws the offer. Employers frequently skip this step entirely, which is an independent violation regardless of whether the underlying decision would have been defensible.

The timeline Background reports are date-stamped. When the rescission arrives hours after the report, causation stops being an inference.

The other recurring fight is legal rather than factual: employers stretch “direct relationship” and “unreasonable risk” far past what the statute allows, treating any conviction as disqualifying for any customer-facing or unsupervised role. Courts do not read it that way, and the burden of proving the exception sits with the employer.

What if the background report itself is wrong?

Then you may have a second, parallel claim. The Fair Credit Reporting Act governs employers that use third-party screening companies. Before it may take adverse action, the employer must give you a pre-adverse-action notice with a copy of the report and a summary of your rights, and a reasonable opportunity to dispute it, followed by a final adverse action notice. The screening company has its own obligation to follow reasonable procedures to assure maximum possible accuracy.

Inaccurate criminal-history reporting is common: identity mismatches on common names, charges reported without their dismissals, and sealed cases that resurface after they should have dropped out. Bringing the FCRA claim alongside the state and city discrimination claims often reaches parties the discrimination claim alone would not.

How does federal law compare?

Poorly, for this characteristic. No federal statute makes a criminal record a protected class. The federal route is a disparate impact theory under Title VII: because conviction-based exclusions screen out Black and Latino applicants at higher rates, a blanket policy can violate Title VII unless the employer shows it is job related and consistent with business necessity. The EEOC’s guidance directs employers to weigh the nature of the offense, the time elapsed, and the nature of the job, and to conduct an individualized assessment.

But disparate impact requires a pattern and usually statistics. New York’s laws protect you as an individual, with no group proof required, which is why the state and city claims carry these cases and the federal claim is secondary or absent.

How we handle criminal conviction discrimination cases

We represent employees and applicants in the great majority of our matters, and employers in a limited number of them. We run a conflict check before taking any case. These cases are won on documents that exist for a short window, so we move immediately: the written § 754 demand, preservation of the background report and the FCRA notices, the job posting and application as they appeared, and the offer correspondence. If the job was in New York City, we look first at whether the employer asked before the conditional offer and whether it ever produced a written fair chance analysis, because either failure is a violation standing alone.

Fee arrangements depend on the matter. Many employee-side cases are handled on a contingency fee basis, where there is no fee unless we recover for you and case costs and disbursements are advanced by the firm and reimbursed from any recovery. Other matters are handled on a retainer, and we tell you in writing which applies before you commit to anything. The initial consultation is always free and confidential. The initial case evaluation is free.