Phillips & Associates

Criminal History Discrimination

New York City Lawyers Advocating for Employees and Job Applicants

It can be challenging for people with misdemeanors or felonies on their record to find work. Across the country, employers frequently eliminate applicants with a criminal history even before looking at whether they are qualified for a job and whether they are the best candidate for a job. New York City employers are not permitted to engage in criminal history discrimination prior to making a conditional offer. This means that they must give every job applicant a fair chance. State law also provides some protection against criminal history discrimination to employees outside the City. While there is no federal protection against criminal history discrimination, this type of discrimination is sometimes also race discrimination, which is prohibited by Title VII. At Phillips & Associates, our New York City criminal history discrimination lawyers may be able to help you recover damages in this type of situation.

The Fair Chance Act and Criminal History Discrimination

Criminal history includes a previous history of criminal convictions or non-convictions or a currently pending criminal case. Convictions may be for misdemeanors or felonies in New York, but they can also be for a crime as defined by another state's laws. Non-convictions include any criminal action that is not pending currently and that concluded through termination in favor of the defendant (whether or not that termination is sealed), adjudication as a youthful offender, convictions of non-criminal violations sealed under CPL § 160.58, and convictions sealed under the Fair Chance Act.

The Fair Chance Act amended the New York City Human Rights Law to prohibit employers in the city from asking about job applicants' criminal history before a job offer is made. In other words, job ads, job applications, and interviews cannot include questions about a job applicant's criminal history. The applicant is first judged on the merits, and then criminal history may be considered. An employer that wants to revoke a job offer due to criminal history after making the conditional job offer must provide a specific Fair Chance Notice and give the job applicant a copy of any background check that was performed. By law, a job applicant has three business days to respond. A criminal history discrimination attorney can fight for New York City residents whose rights under this law have been violated.

The Fair Chance Act applies to decisions that affect any terms and conditions of employment, including promotions, transfers, and terminations. The notice and disclosure need to be communicated to the employee in writing (or via email if both parties agree).

Per se violations of the Fair Chance Act include running job ads that state limitations based on criminal history, inquiring about criminal history during an interview before a conditional offer of employment, and withdrawing a conditional offer of employment due to criminal history before conducting the appropriate process. Chargeable violations include failing to provide written copies of inquiries conducted into a job applicant's criminal history, not sharing a written copy of the Article 23-A analysis, not holding the job open for three business days to permit a response, or taking an adverse employment action because of a job applicant's non-conviction. In any of these situations, a New York City criminal history discrimination attorney can help you assert your rights.

New York Correction Law Article 23-A

An employer hoping to withdraw a conditional offer of employment needs to first conduct an analysis under Article 23-A, which is state law. Employers are required to consider certain factors when denying employment. Under Article 23-A, an employer cannot deny employment unless it can show a direct relationship between the criminal history and the job, or unless it can show that employing the applicant would result in an unreasonable risk to welfare or property.

If an employer cannot meet one of these two exceptions, it cannot withdraw the conditional offer, and it cannot assume that there is an unreasonable risk simply because of a conviction. It must take into account these factors: (1) encouraging employment of people with criminal records under state public policy, (2) the particular job obligations and responsibilities, (3) whether the applicant’s record bears on their ability to perform the job duties, (4) the amount of time that has passed since the events resulting in the convictions, (5) the job applicant's age when those events happened, (6) the severity of the crimes at issue, (7) information about rehabilitation or good conduct, and (8) the employer's legitimate interest in protecting welfare or safety.

Hire a Criminal History Discrimination Lawyer in New York City

Our experienced New York City attorneys believe that people with a criminal history should be able to find work. We are familiar with the many forms of criminal history discrimination during job interviews or on employment applications and can help you pursue remedies under the appropriate law. Call us at (212) 248-7431 or contact us via our online form for a free consultation. We fight criminal history discrimination in the Bronx, Queens, Brooklyn, and Manhattan, as well as Nassau, Suffolk, and Westchester Counties and New Jersey.

PHILLIPS & ASSOCIATES
45 Broadway, #620,
New York NY, 10006
Tel: 646-362-6941
Fax: 212-901-2107
New York Employment Attorney Blog - Criminal History Discrimination
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