Criminal Conviction Discrimination on Employment Applications

New York City Lawyers Helping Job Applicants Protect Their Rights

Millions of Americans have a criminal record that includes one or more convictions. People with criminal convictions often find it extremely difficult to find a job, since the vast majority of employers across the country check criminal and arrest records when hiring. Both the State of New York and New York City, however, prohibit employment discrimination on the basis of criminal convictions in many situations. This area of law is very nuanced, and it is important to consult an experienced attorney about your particular situation. At Phillips and Associates, our New York City criminal conviction discrimination lawyers may be able to represent you if you faced criminal conviction discrimination on an employment application. 

The Fair Chance Act and Criminal Conviction Discrimination on Employment Applications

The Fair Chance Act covers employers in New York City with four or more employees. It allows you to file a criminal conviction discrimination complaint with the Commission's Law Enforcement Bureau within a year of the discriminatory act or file a complaint in court within three years of a discriminatory act.

The Fair Chance Act makes it an illegal discriminatory practice for most employment agencies, labor organizations, and employers to ask about or consider your criminal convictions until after they have extended you a conditional offer of employment. It is a per se violation of the FCA to ask you about your criminal record or conviction history on an employment application before a conditional offer of employment.

There are other per se violations of this law, and each of them can be a separate count of a complaint. For example, it is a violation to create an employment ad that specifies or limits the applicant pool based on criminal convictions, even if no adverse action follows. This means that a job ad should not say "no felonies" or "must have a clean record."

Under the Fair Chance Act, an employer can only start asking you questions about your criminal conviction history and conduct a criminal background check after it has made a conditional job offer to you. The conditional job offer is a step that an employer would typically only take after having you fill out an employment application.

After the conditional job offer and the background check, your prospective employer must evaluate certain factors and decide that your conviction is directly related to the job or that hiring you would present a risk to people or property to withdraw the offer. Factors to be considered in this analysis include the particular job duties and the bearing of the conviction on your ability to perform that job, how long ago the events giving rise to the conviction happened, how severe the offense was, how old you were at the time of the events giving rise to the conviction, evidence of rehabilitation, and its own legitimate interest in protecting the public, individuals, or property.

The New York State Human Rights Law

The New York State Human Rights Law prohibits asking about arrests or accusations that did not result in a conviction unless they are currently pending when the business is deciding whether to hire you. Under state law, employers are not permitted to ask questions on an employment application about convictions that have already been sealed or about youthful offender adjudications.

However, under the state law as it applies to employers outside New York City, employers are allowed to ask about criminal convictions on employment applications or in job interviews. You can honestly answer on an employment application that you have not been convicted only if the conviction has been sealed or if you have received a youthful offender adjudication.

You are responsible for knowing the status of a sealable conviction. If it was not actually sealed, it is a conviction record that an employer can require you to disclose on an employment application.