New York ban-the-box rules: Article 23-A, Executive Law 296 and NYC
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New York's fair chance rules work differently from most ban-the-box laws. Statewide, the main rule is not about timing but about use: Correction Law Article 23-A says a private employer with ten or more employees may not deny a job because of a conviction unless the offense has a direct relationship to the job or hiring would create an unreasonable risk, judged against eight listed factors. Executive Law 296(16) separately bars asking about arrests that ended in the applicant's favor, sealed records and youthful offender findings. In New York City, the Fair Chance Act adds the timing rule: no criminal history questions or checks until after a conditional offer.
Not legal advice. This page summarizes the New York statutes as published on the New York State Senate's Open Legislation site and the NYC Commission on Human Rights fact sheet linked below, as of October 2026. Confirm what applies to your roles with New York employment counsel before relying on it.
The state statutes
Correction Law Article 23-A
- Who: Section 750 defines a private employer as "any person, company, corporation, labor organization or association which employs ten or more persons."
- The rule: Section 752 prohibits denying employment because of a previous conviction unless "there is a direct relationship between one or more of the previous criminal offenses" and the job, or employing the person would involve an unreasonable risk to property or to the safety or welfare of specific people or the public.
- The factors: Section 753 requires the employer to consider eight factors, listed in the table below, and says a certificate of relief from disabilities or a certificate of good conduct "shall create a presumption of rehabilitation" for the offenses it covers.
- Reasons on request: Section 754 requires a written statement of the reasons for a denial "within thirty days of a request."
| Article 23-A factor (section 753) | What to document |
|---|---|
| The state's public policy of encouraging employment of people previously convicted | That the policy was weighed, not just recited |
| The specific duties and responsibilities of the job | The actual duties, from the job description |
| The bearing of the offense on fitness to perform those duties | The specific link, or that there is none |
| The time elapsed since the offense | Years, measured from the conduct |
| The person's age at the time of the offense | Age at the time |
| The seriousness of the offense | Offense and disposition as reported |
| Information about rehabilitation and good conduct | Whatever the candidate or others provided |
| The employer's legitimate interest in protecting property and safety | The concrete risk, tied to the role |
Executive Law 296(15) and (16)
Executive Law section 296, the State Human Rights Law, makes a violation of Article 23-A an unlawful discriminatory practice (subdivision 15). Subdivision 15 also gives employers a rebuttable presumption in negligent hiring cases that the record is excluded from evidence if the employer weighed the Article 23-A factors in good faith and decided to hire.
Subdivision 16 applies to "any person, agency, bureau, corporation or association." Unless specifically required or permitted by statute, it bars any inquiry about, or adverse action based on, an arrest or criminal accusation that is not pending and that ended in the person's favor, an adjournment in contemplation of dismissal, a youthful offender adjudication, or a sealed conviction or violation. Sealed matters include those sealed under Criminal Procedure Law 160.57, the automatic sealing provision added by the Clean Slate Act, which applies to many misdemeanors after three years and felonies after eight. The person asked may answer as if the matter never happened.
When the question may be asked
In the state statutes we read, we did not find a provision that sets a stage in the hiring process after which a private employer may ask about convictions. Do not assume that means "any time." Questions about the protected categories in 296(16) are barred at every stage, and a pending case is treated differently from a closed one. Outside New York City, ask counsel whether a county or city law adds a timing rule; we did not check local laws outside the city.
New York City: after a conditional offer
According to the NYC Commission on Human Rights' Fair Chance Act fact sheet for employers, the city law covers employers with four or more employees, counting the owner, as long as one works in the city. Before a conditional offer, employers may not mention arrest or conviction history in ads, ask about it on applications or in interviews, run background checks, or otherwise try to find out whether an applicant has a record. Some information may never be considered, including non-conviction arrests, unrevoked adjournments in contemplation of dismissal, non-criminal violations and youthful offender or juvenile findings.
If a New York City employer wants to withdraw an offer because of a record, the fact sheet describes three steps:
- Evaluate the applicant under the city's fair chance factors, which include the Article 23-A factors, and share the written analysis. The Commission's Fair Chance Notice can be used.
- Give the applicant a copy of the background check or other information relied on.
- Hold the job open for at least five business days so the applicant can respond, and reconsider if they provide new information.
Staffing agencies and recruiters
Subdivision 16 reaches "any person, agency, bureau, corporation or association," so an agency asking about a sealed case on a client's behalf is within its words. Article 23-A applies to private employers of ten or more, which will include most agencies as employers of their own temporary workers. The city fact sheet we reviewed does not address staffing agencies specifically, so ask the client or counsel how the city process is split between agency and client before a placement in New York City.
Penalties and enforcement
Under Correction Law section 755, Article 23-A is enforced against private employers by the State Division of Human Rights under the Executive Law, and concurrently by the New York City Commission on Human Rights. Remedies are those of the Human Rights Law; we have not listed amounts here because we did not verify a fixed penalty schedule for these provisions.
How it fits with FCRA adverse action
New York adds a step to any consumer report that contains conviction information: under General Business Law 380-g(d), the person who requested the report must give the subject "a printed or electronic copy of article twenty-three-A." That sits alongside the federal FCRA steps: disclosure and authorization before the check, then a pre-adverse action notice with the report and the summary of rights before rejecting, and a final notice. In New York City, the Fair Chance Notice and the five business day hold usually run together with the FCRA pre-adverse action notice. See the FCRA background check process and background check notification emails.
A script for New York screens
The candidate volunteers a record
"Thanks for letting me know. It isn't part of my screening, so I won't ask about it or write it down. If there's a background check, it's handled separately later. Back to the role…" In New York City, the fact sheet says to steer the conversation to another topic.
The candidate mentions a case that was dismissed or sealed
"You don't need to tell me about that, and it isn't something we consider." Then move on. Under 296(16) they may answer as if it did not happen, and the employer may not act on it.
The client wants a "no records" rule
"New York requires an individual look at the job's duties and eight factors, so a blanket rule isn't something I can screen on. If a law requires a check for this role, send me the citation."
A New York checklist for recruiting desks
- Remove criminal history questions from applications and screening forms for New York roles, and in New York City keep checks and searches until after a conditional offer.
- Never ask about dismissed, sealed, adjourned in contemplation of dismissal or youthful offender matters, anywhere in the state.
- Keep anything a candidate volunteers out of submittals and notes. See what not to write in interview notes.
- Make sure whoever orders the check sends a copy of Article 23-A with any report containing conviction information.
- Document the eight-factor analysis before any decision, and be ready to give written reasons within 30 days of a request.
- For the general scripts and federal background, see ban-the-box laws and interview questions.
Questions people ask
Does New York State ban the box for private employers?
The state statutes we reviewed do not set a hiring stage after which a private employer may ask about convictions. What they do is limit how a conviction may be used: Article 23-A requires a direct relationship or unreasonable risk analysis using eight factors, and Executive Law 296(16) bars asking about arrests that ended in the applicant's favor, sealed records and similar outcomes. New York City adds a conditional offer rule.
What are the Article 23-A factors?
Section 753 lists eight: the state's policy of encouraging employment of people with convictions, the specific duties of the job, the bearing of the offense on fitness for those duties, the time elapsed, the person's age at the time, the seriousness of the offense, evidence of rehabilitation and good conduct, and the employer's legitimate interest in protecting property and the safety of people and the public.
When can a New York City employer ask about criminal history?
Only after a conditional offer, for employers with four or more employees, according to the NYC Commission on Human Rights. Before that, the employer may not ask, run a background check or otherwise try to find out whether the applicant has a record.
Must a New York employer explain why it rejected someone with a record?
On request, yes. Correction Law section 754 requires a written statement of the reasons within thirty days of a request from a person denied employment because of a conviction. In New York City, the Fair Chance Process also requires sharing a written analysis before the decision is final.