Being arrested or convicted of a crime in New York may jeopardize your freedom and interfere with employment opportunities. Many employers will reject job applicants due to their arrests or convictions. However, unlawful discrimination against job applicants or employees who have been arrested or convicted is prohibited in New York City.
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. Our seasoned NYC employment attorneys are prepared to fight for your legal rights because we believe everyone deserves a second chance.
Can NYC Employers Discriminate Based on an Arrest?
Both the New York State and New York City Human Rights laws prohibit discrimination in employment based on an individual’s record of arrest. These laws prohibit employers from discriminating against a job candidate and refusing to hire them because of any arrest that did not result in a conviction. They also prohibit employers from inquiring about arrests or unrelated convictions that are not currently pending both before and after a person is hired.
As a result, New York employers cannot ask you about your arrest record in 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, and sealed convictions. If you have an outstanding arrest that hasn’t been adjudicated, an employer is permitted to ask about it and use it as a basis for an employment decision.
When Can Employers Ask about Arrests?
Some exceptions to the general rule are that employers cannot ask about past arrests and convictions. For example, suppose you have an outstanding arrest that hasn’t been adjudicated. In that case, an employer can ask about it and 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.
New York City’s Fair Chance Act “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 five boroughs are prohibited 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.
Can NYC Employers Discriminate Based on Criminal Convictions?
Being convicted of a crime in New York means a person has been found guilty of either a misdemeanor or felony. A petty offense, a minor offense of the penal law, such as a traffic infraction or violation (e.g., disorderly conduct or harassment), is not considered a conviction, even though it may result in a brief jail sentence and a fine. Moreover, a mere arrest does not necessarily mean that a person has committed a crime or will be convicted.
Regarding convictions and employment law in New York, employers are permitted to ask about criminal convictions during the hiring process. However, employers are prohibited from making any employment decisions (e.g., hiring, firing) based on an individual’s prior conviction(s) unless:
- There is a direct relationship between the offense(s) and the position being sought or held by the individual or
- The individual’s hiring or continued employment would result in a threat to specific individuals or to public safety.
Factors Employers Should Consider When Considering Prior Convictions
Employers cannot deny an employee a job simply because they see a criminal conviction in their application or background check. Instead, employers are legally required to consider multiple factors that could help them make a careful decision, such as:
- The nature of the criminal offense
- The specific job duties and responsibilities
- The effect the criminal conviction has on the individual’s ability to perform their job duties and responsibilities
- The time that has passed since the conviction
- The individual’s age when the crime occurred
- The employer’s legitimate interest in protecting public safety and property
Employers must allow potential employees to explain the circumstances of their prior convictions, provide information confirming that they have completed rehabilitation services, and prove they can perform their job duties by virtue of having done so previously.
Finally, suppose an employer asks about criminal convictions on an application or in an interview, and a candidate lies. In that case, the employer cannot hire or fire that individual. Unlike other job denials in New York, if employment is denied due to prior convictions, the employer must provide written notice within 30 days of the applicant’s request stating the reason for the denial.
Contact a Familial Discrimination Attorney in New York
At Lipsky Lowe LLP, we know that individuals with an arrest record or prior convictions are often mistreated in the job market. If an employer has ever refused to hire you or terminated you because of a criminal conviction, you may have a valid claim for compensation.
If you have a valid arrest and conviction employment discrimination claim, we can pursue damages such as back compensatory damages, punitive damages, attorneys’ fees, and legal costs. We know that overcoming the stigma of an arrest or conviction in the job market is daunting, and we will see that you are treated fairly. Contact our office today for a free evaluation of your case.