Being arrested or convicted of a crime in New York may not only jeopardize your freedom but also interfere with employment opportunities. Many employers rely on a criminal history as a screening tool for candidates, regardless of whether it has any bearing on the job. Under certain circumstances, however, it is unlawful for employers to discriminate against job applicants or employees who have been arrested or convicted of a crime. If you have been denied employment or fired from a job because you have an arrest record or a history of criminal convictions, you need an experienced employment law attorney in your corner.
At Lipsky Lowe LLP, we know that individuals with an arrest record or prior convictions are often treated unfairly in the job market. Whether an employer asked if you have ever been arrested, refused to hire you, or terminated you, solely because of a criminal conviction, you may have a valid employment discrimination claim. Our arrests and convictions employment discrimination attorneys will be the strength in your corner because we believe that everyone deserves a second chance.
Arrests and Employment Discrimination in New York
Both the New York State and New York City Human Rights laws prohibit discrimination in employment based upon an individual’s record of arrest. Under these laws, it is unlawful for an employer to discriminate against a job candidate and refuse to hire him or her because of any arrest that did not result in a conviction. The arrests and employment discrimination laws in New York also prohibit employers from inquiring about arrests or unrelated convictions that are not currently pending both before and after a person is hired.
This basically means an employer in the state cannot ask you about your arrest record on an application, during a job interview, or once an offer has been made, unless the charges are still pending or you have been convicted. In addition, it is unlawful for employers to inquire about criminal charges that were decided in your favor, juvenile delinquent and youthful offender violations, as well as sealed convictions. If you have an outstanding arrest that hasn’t been adjudicated, however, an employer is permitted to ask about it and also use it as a basis for an employment decision.
It is worth noting that certain employers in New York, including law enforcement agencies, federal government agencies and the Port Authority, are exempt from these limitations and are permitted to ask you about your arrest record and any prior convictions, including sealed convictions.
What is the Ban the Box Law?
Job candidates in New York City have an additional layer of protection under the Fair Chance Act (the “ban the box” law). Under this law, employers in the 5 boroughs are barred from inquiring about a candidate’s criminal history until after a conditional job offer has been made to the applicant. In addition, employers cannot request permission to run a criminal background check or inquire about pending criminal charges before a conditional offer of employment is made.
Convictions and Employment Discrimination
Before discussing conviction and employment discrimination, it is necessary to understand what a criminal conviction actually means. In short, being convicted of a crime in New York means to be found guilty of either a misdemeanor or felony. A petty offense, which is a minor offense of the penal law, such as a traffic infraction or violation (e.g. disorderly conduct, harassment), is not considered a conviction, even though it may result in a brief jail sentence and/or a fine. Moreover, a mere arrest does not necessarily mean that a person has committed a crime or that he or she will be convicted.
When it comes to convictions and employment law in New York, employers are permitted to ask about criminal convictions during the hiring process. Nonetheless, employers are prohibited from making any employment decisions (e.g. hiring, firing) based on an individual’s prior conviction(s) unless (1) there is a direct relationship between the offense(s) and the position being sought or held by the individual or (2) the individual’s hiring or continued employment would result in a threat to specific individuals or to public safety.
In making this determination, employers are required to consider factors such as:
- The specific job duties and responsibilities
- The effect the criminal offense has on the individual’s ability to perform those duties or responsibilities
- The amount of time that has passed since the conviction
- The nature of the criminal offense
- The individual’s age at the time the criminal offense occurred
- The employer’s legitimate interest in protecting property and public safety
In addition, candidates must be given an opportunity to explain the circumstances of their prior convictions, to provide information confirming that they have completed rehabilitation services, and to prove they will be able to perform the job duties by virtue of having done so previously.
Finally, if an employer asks about criminal convictions on an application or in an interview and a candidate lies, then the employer has a right not to hire or to fire that individual. Unlike other job denials in New York, if employment is denied due to the prior convictions, the employer is required to provide written notice, within 30 days of the applicant’s request stating the reason for the denial.
Arrest and Convictions Discrimination Under Federal Law
Federal law does not specifically prohibit employment discrimination based on an arrest record or history of criminal convictions. Nonetheless, the Equal Employment Opportunity Commission (EEOC) has issued a policy statement to the effect that an employer’s use of criminal history in making employment decisions may violate prohibitions of discrimination based on race or national origin under Title VII of the Civil Rights Act of 1964. This is due to the disparate impact adverse employment decisions may have on African-Americans and Latino Americans, minority groups with a higher arrest and conviction rate than the general public.
Contact Our New York City Arrest and Conviction Employment Discrimination Attorneys
If you have been denied employment or fired from your job because of an arrest record or a history of criminal convictions, Lipsky Lowe LLP is prepared to help. Our employment law attorneys know that overcoming the stigma of an arrest or conviction in the job market is daunting and will see to it that you are treated fairly. If you have a valid arrest and convictions employment discrimination claim, we can help you recover damages such as back compensatory damages, punitive damages, attorneys’ fees and legal costs. When you become our client, we will stand by you every step of the way, fighting to protect your rights. Contact our office today for a free evaluation of your case.