Phillips & Associates

Discrimination Based on Arrest History

Employment Attorneys Representing Job Applicants in New York City

In New York City, most employers are not supposed to discriminate against job applicants or employees based solely on past arrest history. Both the New York State Human Rights Law and the New York City Human Rights Law encourage employers to hire job applicants based on their merit rather than their lack of arrest history. However, there are exceptions, including for law enforcement agencies. If you are concerned that you faced discrimination based on arrest history, you should retain a New York City criminal conviction discrimination lawyer. This is a complicated area of law, and it is important to explain your particular situation to an attorney who can determine whether you have a case that could be pursued in court or through a complaint with the pertinent agency. At Phillips & Associates, we are dedicated to fighting employment discrimination of all kinds.

Discrimination Based on Arrest History Under the New York State Human Rights Law

The New York State Human Rights Law forbids discrimination based on arrest history in many situations. It provides protection to job applicants or employees with prior arrest records when charges were dismissed, charges resulted in a youthful offender adjudication, charges concluded in a conviction for a violation that was then sealed under CPL 160.55, or charges concluded in a conviction that was then conditionally sealed under CPL 160.58. An employer has different obligations with regard to these different areas.

Under the New York State Human Rights Law, employers are not allowed to inquire about arrests or criminal accusations that are not currently pending against you. This means that, for example, if you were arrested 10 years ago for a DUI, but no charges were brought, an employer should not ask you about it. Employers are also not supposed to inquire about arrests that were resolved in your favor due to a youthful offender adjudication. For example, if you were arrested for marijuana possession when you were 15 and received a youthful offender adjudication, an employer should not ask you about it.

Under state law, the employer cannot demand information with regard to those prior arrests in order to investigate why you were arrested. With regard to past arrests, an employer also should not take adverse action against you once you have been hired, such as firing you, failing to promote you, or reassigning you to a less favorable job.

However, it is not illegal for an employer to ask if you have any currently pending arrests, accusations, or convictions. You are not protected under the Human Rights Law if an arrest or accusation is pending. A prospective employer can refuse to hire you, and an existing employer can terminate you or discipline you based on your pending arrest. Your employer is allowed to ask you about a pending arrest, the circumstances giving rise to the arrest, and how the matter has proceeded through the criminal justice system. It can also ask questions about the final disposition.

The Fair Chance Act

The New York City Fair Chance Act (“FCA”) amended the New York City Human Rights Law and became effective in 2015. It applies to employers in New York City with at least four employees. The purpose of the law was to put candidates with a criminal record on a more equal playing field with people who do not have a criminal record. The law is designed to make sure that the qualifications of people with arrest records are considered before their conviction history is. Some jobs are exempt from the protections of the FCA.

Under this law, it is illegal discrimination for most employers, labor organizations, or employment agencies to ask about a job applicant's criminal history, including arrest history, until after extending a conditional offer of employment. During a job interview or in a job application, for example, employers are not supposed to ask you about your arrest history.

Under the FCA, you are allowed to refuse to respond to prohibited questions, and your answer should not disqualify you from the job. Employers are supposed to be looking at your qualifications, rather than your arrest history.

However, after a conditional offer of employment is made, there can be certain types of discussions and an employer's consideration of a criminal history. After making a conditional offer of employment, an employer is only permitted to withdraw the offer after an evaluation is made under the Article 23-A factors. It must find that either there is a direct relationship between your criminal record and the prospective job, or employing you would pose an unreasonable risk to the safety or welfare of the general public or specific people or property. If an employer is unable to show that you meet one of these exceptions, it cannot withdraw the conditional offer due to your arrest history.

To assert your rights under the New York City Human Rights Law, you can complain to the Commission's Law Enforcement Bureau within a year of the discrimination or file a complaint in court within three years of the discriminatory act.

Consult Our Knowledgeable Criminal Conviction Discrimination Lawyers

Our experienced attorneys can evaluate your situation to determine whether you may have a basis to sue for discrimination based on arrest history and represent you as appropriate. Contact us online or at (212) 248-7431 to set up a free consultation with an attorney. We represent people throughout New York City, including in the Bronx, Queens, Brooklyn, and Manhattan, as well as in Nassau, Suffolk, and Westchester Counties and in New Jersey. Our firm handles our cases on a contingency basis and does not require clients to make payments upfront.

45 Broadway, #620
New York, NY 10006
Tel: 347-514-4805
Fax: 212-901-2107

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