Although there is no federal statute that specifically protects individuals with a criminal history from employment discrimination, New York State and New York City both explicitly prohibit this form of discrimination.

The New York State Human Rights Law (N.Y. Executive Law § 296) makes it unlawful for an employer to deny employment to (or otherwise discriminate against) an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of “good moral character” due to his or her prior conviction of a criminal offense, when such a denial is a violation of New York Correction Law Article 23-A.

Under New York Correction Law Article 23-A, employers with 10 or more employees 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.

The New York State Human Rights Law (N.Y. Executive Law § 296) also prohibits 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.

Please note that the New York City Human Rights Law (Administrative Code of the City of New York § 8-107) also protects individuals who have been arrested but not convicted, as well as individuals with past conviction(s), from employment discrimination.

Lastly, it’s important to remember that the New York Fair Credit Reporting Act and the New York Labor Law provide that:

  1. An employer seeking to conduct a criminal background check must distribute a copy of Article 23-A to the subject of the report prior to conducting the check;
  2. An employer receiving an investigative consumer report from a consumer reporting agency that contains information of criminal convictions must provide a second copy of Article 23-A to the subject of the report upon receipt of the report; and
  3. All employers must post a copy of Article 23-A in a “visually conspicuous manner” and “a place accessible” to all employees.

If you are still uncertain of the law regarding the use of an individual’s criminal history, it is strongly recommended that you consult with a New York employment discrimination attorney.  Please call the Law Office of Yuriy Moshes, P.C. at (888) 445-0234 for a free consultation with one of our experienced labor and employment discrimination attorneys.

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