By Jeffrey T. Rosenberg, Esq.
Finding a job during these tough economic times is difficult. Add a criminal conviction to your record and it can be even more challenging. But don't despair, New York laws provide some protection to those trying to start over.
Arrest vs. Conviction
Under New York law, an employer cannot discriminate against you for an arrest if you have not been convicted. Specifically, the New York State Human Rights Law and the New York City Human Rights Law prohibit employers from denying an individual a job (or otherwise discriminating against that person) because of any arrest that did not result in conviction, as well as prohibits employers from asking job applicants to disclose any arrest that did not lead to conviction. However, this law does not apply to police or other law enforcement positions, as law enforcement agencies are authorized to ask applicants about all arrests, whether or not they led to conviction.
Under New York Correction Law Article 23-A, employers are expressly prohibited from making adverse hiring or termination decisions based upon an individual's conviction record unless one of the following is found to apply:
1. There is a direct relationship between one or more of the previous criminal offense(s) and the specific employment position sought or held by the individual; or
2. The hiring or continuation of employment of the individual would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
Article 23-A even provides a list of eight factors that employers must consider when determining whether a person's conviction history is job-related or whether that person would, because of that history, pose an unreasonable risk to the public or to property:
1. New York's public policy encouraging the employment of persons previously convicted of one or more crimes;
2. The specific duties and responsibilities of the employment position sought or held by the individual;
3. The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual's fitness or ability to perform one or more job duties or responsibilities;
4. The time that has elapsed since the occurrence of the criminal offense(s);
5. The age of the person at the time of the occurrence of the criminal offense(s);
6. The seriousness of the offense(s);
7. Any information produced by the person or on his or her behalf, in regard to that person's rehabilitation and good conduct; and
8. The legitimate interest of the employer in protecting its property and the safety and welfare of specific individuals or the general public.
When a private employer relies on the unreasonable risk exception of Article 23-A in determining whether to grant employment to an ex-offender, the eight factors should be considered and applied to determine if in fact an unreasonable risk exists. An employer cannot simply presume an unreasonable risk exists. Instead, it must evaluate the factors before reaching that conclusion. In doing so, employers must consider each statutory factor and cannot ignore evidence favorable to the applicant. Similarly, an analysis of a "direct relationship" also requires that the private employer analyze the eight factors to determine if, notwithstanding the existence of a direct relationship, it should, in its discretion, approve the employment sought.
The New York State Human Rights Law (Executive Law §296(15)) and New York City Human Rights Law (NYC Admin. Code §8-107(10)) incorporate the Article 23-A requirements by making it "an unlawful discriminatory practice ... to deny employment to any individual by reason of his or her having been convicted or one or more criminal offenses ... when such denial is in violation of article twenty-three A of the correction law."
If you believe you are being discriminated against due to an arrest or criminal conviction, seek legal assistance.
The New York discrimination attorneys at Phillips & Associates are here to assure that employees' rights are being protected. Contact our office for a free consultation on your potential employment discrimination matter. We can be reached via telephone (212) 248-7431, email: [email protected] or by filling out our form on this site.