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Criminal History Discrimination - March 2020

In the state of New York, there are a number of different protected classes of employees. Federal law prohibits discrimination against employees based on broad categories like gender, race, sexual harassment, and religion. But law is only if the employer has 15 employees or more. The New York State Human Rights Law expands these protections down to smaller businesses and extends them to additional groups of people such as those with a criminal history. Specifically, the law protects discrimination against individuals who have prior arrest records or even criminal convictions and those who have prior criminal conviction records.

New York State Human Rights Law

When interviewing for a job in New York, it is illegal for an employer to ask about an arrest that is not currently pending against you, that was resolved in your favor, that resulted in a sealed conviction, or that was the result of a youthful offense. An employer cannot ask about the circumstances of the arrest and cannot demand enough information from you in order to further investigate.

Employers can ask about current arrests or outstanding accusations. However, during the interview process, or if an arrest arises during employment, it is legal for your employer to ask about the progress of your case, as well as the final outcome.

Similarly, while a case is pending against you, state law does not offer discrimination protections. For example, if an employer discovers an active case against you and chooses not to hire you, or terminates you, for this reason, that may be legal. The protection is based on criminal history only.

Fair Chance Act

New York City also has its own version of the state’s human rights law, which was augmented in 2015 by the Fair Chance Act, which aims to have jobseekers reviewed for jobs on their merits rather than their mistakes. An employer must make a conditional offer of employment before being allowed to run a background check and consider an applicant’s criminal history.

Applicants are not required to answer questions about any past arrests or accusations, and their refusal to answer such prohibited questions should not disqualify them from the job. Further, if the question was inadvertent or the job applicant slips and says something about his/her past history, the employer must continue through the hiring process without taking that information into consideration until after a conditional offer of employment has been issued.

If, after running a background check, the employer chooses to withdraw its offer of employment, then the business must give the applicant a copy of the inquiry into the applicant’s conviction history. The job applicant then has three days to answer the business. At this point, an employer can ask questions about conviction history, pending cases, and the circumstances leading to a conviction. Employers are not allowed to ask about or use information about non-convictions in their hiring process.

After the applicant has had a chance to respond to any inquiry an employer has about a prior conviction, the employer has to consider certain factors before it can withdraw its conditional offer of employment. These factors include the job duties of the prospective employee and whether his or her conviction history will impact the ability to do the job. Employers must also consider the time that has passed since the conviction, the applicant’s age at the time of conviction, the seriousness of the event, and any rehabilitation that occurred between the conviction and application.

Employers are allowed to consider their own interests in promoting workplace safety, the welfare of their team, and protecting their property. When denying employment, the business must show that there is a direct relationship between the conviction history and the work the employee would be doing. They could also show that hiring the employee creates an unreasonable danger to certain people or to the public at large.

If you believe you’ve been unfairly discriminated against because of some criminal issue in your past, call the attorneys at Phillips & Associates. We are a big firm that defends people who have been discriminated against in the hiring process and in the workplace, so you won’t be out gunned by the larger firm your old employer hires to defend itself. For a free consultation, call the experienced New York discrimination and wrongful termination attorneys at Phillips & Associates today at (833) 529-3476.

At Phillips & Associates - We Level the Playing Field

Employees were, and for the most part still are, at a big disadvantage in the workplace. There is a dramatic power imbalance between employees and the companies for which they work. This power balance can intensify after experiencing sexual harassment or discrimination. The company/employer often hires a large law firm to represent it, while the employee may have just lost their job, have very little money and no one to help them understand their rights. At Phillips & Associates, we have the experience, staffing, and financial backing to keep the playing field level. People need to take a close look at the lawyer or law firm they want to hire and determine if that lawyer or firm has the funds, experience and the resources to properly litigate their case.

Phillips & Associates, one of the largest plaintiffs’ only employment law firms in New York. The firm handles cases involving sexual harassment and discrimination in the workplace including pregnancy, race, disability, religion, gender, and sexual orientation and other protected traits. Phillips & Associates also handles other areas of harassment at work such as retaliation and wrongful termination. Most recently Phillips & Associates was selected as one of the "10 Best Employment & Labor Law Firms" in New York" by the American Institute of Legal Counsel.

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