The call or email arrives, and the job you already accepted is gone. Maybe you gave notice at your last position. Maybe you turned down other interviews. Now an employer is telling you the offer was rescinded pending background check results, and you’re left wondering whether anything you do in the next few days actually matters. It does. What happens in the hours and days after that notice can determine whether you have a viable legal claim or no options at all.
New York City doesn’t leave this situation entirely up to the employer. The NYC Fair Chance Act and Article 23-A of the New York Correction Law impose a specific, written process on employers before they can legally pull a conditional offer based on criminal history. Most applicants don’t know this process exists, let alone that they’re owed documents and a formal written analysis before the decision becomes final.
At Brown Kwon & Lam, clients work directly with the New York City criminal conviction discrimination lawyer handling their case, not with assistants or intake coordinators. When a rescission is time-sensitive, that direct access matters. The sections below lay out what the law requires, what to do inside your response window, and what a procedural misstep by the employer can mean for your claim.
Why the Timing of the Background Check Matters Under NYC’s Fair Chance Act
The NYC Fair Chance Act is a ban-the-box law, meaning it prohibits employers from asking about or investigating criminal conviction history until after a conditional offer of employment has been extended. That sequencing isn’t a technicality. It exists so employers evaluate applicants on their qualifications first, without criminal history shaping that judgment before an offer is on the table.
Following the 2021 amendment under Local Law 4, which took effect July 29, 2021, the sequencing requirement became stricter. Employers must complete all non-criminal background screening, including employment verification, education checks, and reference checks, before extending a conditional offer. Only after that offer is made can they run a criminal history check. If a decision-maker had access to your criminal history before the conditional offer was extended, the employer bears the burden of proving that information was inaccessible until after the offer was made. That burden shift is one of the most consequential changes the 2021 amendments introduced.
What Your Employer Must Do Before Pulling the Offer
Receiving a background check result isn’t enough to legally rescind a conditional offer in New York City. Before the employer can finalize that decision, it must complete what the NYC Commission on Human Rights calls the Fair Chance Process.
The Fair Chance Process involves three specific requirements:
- Written Article 23-A analysis: The employer must weigh the specific factors required under Article 23-A of the New York Correction Law, including the direct relationship between the offense and the job’s specific duties, the time elapsed since the offense, the applicant’s age at the time of the offense, and any evidence of rehabilitation. A general statement that the company has “safety concerns” doesn’t satisfy this requirement.
- Copy of the criminal history documentation: The employer must give you a copy of the background check report or other documentation used to identify your conviction history, along with the date and time it was accessed.
- Fair Chance Notice: The employer must provide you with a written Fair Chance Notice that includes its Article 23-A analysis before the decision is finalized, giving you a meaningful opportunity to respond.
What to Do During Your Five-Business-Day Response Window
You have five business days from receipt of the Fair Chance Notice and background check documentation to respond before the employer can finalize its decision. That window is your real leverage point. Use it to directly influence the employer’s analysis, document what the employer did and didn’t provide, and build the record that any legal claim will depend on.
Confirm the Date You Received the Notice
The five-business-day clock starts when you receive both the criminal history documentation and the written Article 23-A analysis. Note the exact date and time you received each document. If the employer sent only one without the other, the clock may not have started yet.
Request Missing Documents in Writing
If the employer hasn’t provided a copy of the background check report or hasn’t shared its Article 23-A analysis, send a written request immediately. Withholding either document is a per se violation of the NYC Fair Chance Act, meaning it’s a violation regardless of whether your conviction was actually related to the job. Use email, keep copies, and note timestamps.
Assemble & Submit Rehabilitation Evidence
Before the deadline, gather and submit anything that speaks to the Article 23-A factors. A Certificate of Relief from Disabilities is one of the most direct forms of evidence available. Under New York Correction Law, it creates a presumption of rehabilitation that the employer must account for in its analysis. Depending on the circumstances of your conviction, the certificate may be issued by the sentencing court or by the New York State Department of Corrections and Community Supervision. Program completions, vocational training, employer references, and community involvement letters also carry weight. The employer is legally required to reconsider its Article 23-A analysis in light of what you provide. Submit everything before the window closes.
Warning Signs the Rescission Broke the Law
Not every rescission is unlawful, but several procedural failures each independently constitute a per se violation of the NYC Human Rights Law (NYCHRL), meaning the violation exists on its face without requiring proof of discriminatory intent.
Watch for these specific failures:
- No Fair Chance Process at all: If the employer withdrew the offer without completing any written process, that’s a per se violation, regardless of what your criminal history shows.
- No written documentation provided: If you never received a copy of the background check or the employer’s Article 23-A analysis, that failure alone supports a claim.
- Criminal history accessed before the conditional offer: Under the 2021 amendments, if your criminal history was reviewed before you received a conditional offer, the employer must prove it played no role in the decision. This is a difficult burden to meet.
- Rescission without waiting for your response: If the employer pulled the offer before your five-business-day window closed, the process wasn’t completed lawfully.
The 2021 amendments also shifted who carries the burden in these disputes. The employer must prove it would have rescinded the offer regardless of the background check results. You don’t have to disprove the employer’s reasoning. They have to affirmatively defend it.
Why Acting Quickly Protects Your Options
Filing a complaint with the NYC Commission on Human Rights has its own deadlines, and the strength of your complaint is directly tied to how well the record was preserved in those first five days. Missing the response window doesn’t eliminate every avenue, but it can foreclose some of them. If you’ve received a Fair Chance Notice or had a conditional offer withdrawn in New York City, we offer free consultations to review the specific notice, timeline, and documents before your response window closes.
Call us at (212) 295-5828 or fill out our online form. Our criminal conviction discrimination attorney in New York City is dedicated to pursuing justice.