Phillips & Associates

Criminal History Discrimination

Employment Attorneys Representing Workers in New York City and Beyond

Under the New York State Human Rights Law, two groups of people with a criminal history are protected: people who have prior favorably resolved arrest records or arrests that gave rise to sealed convictions or youthful offender adjudications, and people who have prior criminal conviction records. There are different obligations that an employer will have under the state law to each of these two groups. Employers in New York City must follow a very specific process in connection with a prospective employee's or existing employee's criminal history. If you believe that a prospective or existing employer has engaged in criminal history discrimination against you, you should consult the New York City criminal history discrimination lawyers at Phillips & Associates. You can also watch the video above to learn more about your legal rights.

Criminal History Discrimination Under State Law

Under state law, it is illegal for an employer to ask about an arrest or accusation that is not pending against you. It is also illegal for an employer to ask about an arrest that has been resolved in your favor, or that has been resolved by a sealed conviction or a youthful offender adjudication.

It is also illegal to require you to give information about the circumstances of an arrest or accusation that is not pending. An employer cannot demand information from an accused person in order to investigate the circumstances behind the arrest. However, it is not illegal to ask about convictions or to ask if you have currently pending accusations or arrests, and to query about the progress of your case through the courts, as well as the final outcome.

You are not protected under the state law as long as the arrest or criminal accusation is pending against you. This means that under the state law, an employer can decide not to hire you or terminate or discipline you, as long as any other applicable law is followed.

Criminal History Discrimination Under City Law

The New York City Human Rights Law, as amended by the Fair Chance Act, prohibits criminal history discrimination in workplaces under certain conditions. It is illegal for most employers to ask about or consider a job applicant's criminal history until after the employer makes a conditional offer of employment. If an employer wants to withdraw its offer, it needs to give the job applicant a copy of its inquiry into the conviction history, along with at least three days to answer.

Under the Fair Chance Act, a job applicant can refuse to answer a prohibited question without getting disqualified for the prospective job. If you are asked a legitimate question in a job interview, for example, and you inadvertently let slip your criminal history, the employer is still supposed to continue the hiring process and not examine the conviction information until after deciding on the conditional offer of employment. If you suspect that a potential employer did not take these steps, our attorneys can advise you on your specific situation.

After making a conditional offer, an employer can inquire about criminal conviction history or a pending criminal case, run a background check, or ask about the circumstances leading to the conviction. They are not supposed to ask about non-conviction information or act on it.

Article 23-A Factors

New York City employers that want to withdraw a conditional offer need to consider certain factors specified under Article 23-A. These include the employee’s prospective job duties and obligations, the bearing of their conviction history on their fitness or ability to do the job, the time that has passed since the events that gave rise to the conviction, their age when the events happened, the seriousness of the conviction history, rehabilitation information, and their legitimate interest in promoting safety and welfare or protecting property. To deny employment, the employer must be able to show a direct relationship between the criminal record and the prospective work or show that hiring the employee would involve an unreasonable danger to property or the welfare or safety of certain people or the public. It must follow a specific process.

Explore Your Options with a Discrimination Lawyer in New York City

Our firm understands how challenging it is to face criminal history discrimination on the job. If you are concerned about being mistreated in the workplace due to your criminal record, contact Phillips & Associates at (212) 248-7431 or through our online form for a free consultation. Our attorneys handle employment litigation throughout New York City, as well as in Nassau, Suffolk, and Westchester Counties, New Jersey, and Pennsylvania.

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