Discrimination Based On Arrest History

New York City Arrest History Discrimination Attorneys

Representing Job Applicants in New York, New Jersey, Pennsylvania, & Florida

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. 

Typically, criminal conviction discrimination involves a worker being denied one or more opportunities because of a past crime for which that individual was convicted. The reason that this type of discrimination occurs is because many employers hold the unfounded view that once an individual has been convicted of a crime, that individual will always be undependable or irresponsible. Yet, this type of discrimination fails to take into account that often individuals learn from their mistakes and have changed for the better. People should not be disadvantaged for mistakes for which they were punished and now renounce. Lawmakers at both the state and federal levels have put protections into place to ensure that this type of criminal conviction discrimination does not prevent workers’ abilities to get jobs.

Criminal conviction discrimination takes on various forms but tends to occur most often when an applicant is first looking to be hired. Some examples of this type of illegal discrimination include:

  • Asking the potential employee during the interview, or on the employment application, whether they have been arrested. (Note: questions about pending criminal cases are permitted)
  • Refusing to hire the person due to a prior arrest, even though it did not result in conviction
  • Denying the position solely due to them having a criminal conviction

Other varieties of conviction discrimination may involve an unfair reduction of work hours or skipping someone when they are due a promotion solely because of that person’s past criminal conviction. 

If you are concerned that you faced discrimination based on arrest history, you should retain our New York City arrest history discrimination lawyers. 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, Attorneys at Law, we are dedicated to fighting employment discrimination of all kinds.

Call us at (866) 229-9441 for a no-charge initial consultation.

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 that 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.

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.

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. 

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. You are allowed to refuse to respond to prohibited questions, and your answer should not disqualify you from the job. Further, if the question was inadvertent or the job applicant slips and says something about their 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.

However, after a conditional offer of employment is made, there can be a 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. 

If a prospective employer does have concerns after extending a job offer and getting background check results, it should ask you for evidence of your rehabilitation or good conduct since the conviction. If you have a Certificate of Relief from Disabilities or a Certificate of Good Conduct, an employer should presume you are rehabilitated.

The employer must find that either there is a direct relationship between your criminal record and the prospective job or that 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.

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: 

  • Encouraging employment of people with criminal records under state public policy
  • The particular job obligations and responsibilities
  • Whether the applicant’s record bears on their ability to perform the job duties
  • The amount of time that has passed since the events resulting in the convictions
  • The job applicant's age when those events happened
  • The severity of the crimes at issue
  • Information about rehabilitation or good conduct
  • The employer's legitimate interest in protecting welfare or safety

Federal Law Discourages Discrimination

In an effort to assist employers when they evaluate applicants with criminal convictions, The Equal Employment Opportunity Commission (EEOC) has provided guidance on how to lessen the risk of discriminatory behavior.

These include:

  • The type and magnitude of the crime or its related conduct
  • The time that has elapsed since the crime occurred or the sentence has been completed
  • The tasks involved in the job itself, such as the way the job is supposed to be performed, the amount of time the worker is unsupervised, and the duration of interaction with others

Although there are no federal laws explicitly prohibiting discrimination based on prior criminal convictions, this type of discriminatory practice may in some cases constitute illegal discrimination based on race or color due to its disparate impact on certain classes of people.

Hire an Arrest History Discrimination Lawyer in New York City

Our experienced attorneys believe that people with a criminal history should be able to find work. We are reputed for our work in pursuing workplace equality and are highly regarded for having an extensive understanding of workplace discrimination cases and a longstanding commitment to fairness in the workplace. Our firm is renowned for our dedication, integrity, and compassion, which we bring to every discrimination matter for which we are retained.

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 (866) 229-9441 or contact us via our online form for a free consultation.

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