Some employers eliminate otherwise qualified job candidates because of a criminal record. However, unless it is directly relevant to the job or certain other exceptions apply, it is illegal for employers or licensing agencies in New York to discriminate against applicants or employees based on their criminal arrest or conviction.

If you have lost or been denied a job because of your criminal record, you may be entitled to file an administrative action or a lawsuit. The deadlines to take action are short, so you need to review your case with a knowledgeable New York personal injury attorney as early as possible.

New York laws forbidding criminal record discrimination

Individuals in New York City are protected by both state and city employment discrimination laws. Except in the case of law enforcement jobs, employers in the state of New York are not allowed to refuse to hire an employee based solely on his or her criminal conviction unless it is directly related to the job in question or hiring the individual would place other people or property at unreasonable risk.

NYC workers are also protected by the Fair Chance Act, commonly referred to as the “ban the box” law. This makes it illegal for employers to ask a job candidate about their criminal history or run a background check until after extending a conditional offer of employment. After making the offer, the employer may ask about the applicant’s criminal record as long as the information is not misused.

Federal anti-discrimination law

Unlike New York state and city laws, federal laws do not explicitly prohibit discrimination based on one’s criminal record because those having a criminal history do not belong to a protected class. However, the Equal Employment Opportunities Commission has acknowledged that relying on criminal records can lead to a disparate impact related to race or national origin. It has issued a guidance that urges employers to follow best practices that include not using individuals’ criminal records as a hiring determination unless they are relevant to the position.

Criminal records that are off-limits

New York’s laws prohibit employers from discriminating against job candidates and employees based on:

  • Arrests that did not lead to a conviction
  • Arrests that are not currently pending
  • Sealed conviction and juvenile violations

Unless an exception applies, employers may only take into consideration criminal charges that have not yet been adjudicated.

When an employer may consider an applicant’s criminal record

The rights of potential employees are balanced with the rights of the employers and the public. For example, if you have applied to be a police officer, the department may take into consideration your criminal record.

An employer can also consider a conviction in making an employment decision when:

  • The conviction is directly related to the position or license sought; or
  • Hiring the individual or issuing the license would place the welfare or property of others at unreasonable risk.

In weighing a conviction as a determining factor in hiring, an employer must consider:

  • The seriousness of the crime
  • The age of the applicant at the time of the offense
  • How much time has passed since the commission of the offense
  • Displays of behavior since the offense
  • The responsibilities and duties of the job or license and whether the offense affects the applicant’s ability to perform them
  • The public policy supporting employment of those with criminal records

If an employer decides not to hire an applicant because of their criminal history, it is required to provide a written explanation to the applicant, if requested, within 30 days.

What to do if you are asked about your criminal record

Even though an employer may be limited in how they use the information, you have a duty to be truthful if a current or prospective employer asks about any prior convictions. If an employer asks about arrests that did not lead to a conviction, they may be out of line and could face administrative or legal consequences.

If you have concerns about your criminal history and how it will affect hiring, or if you suspect your history has been used against you improperly, speak with a New York civil rights attorney. The Manhattan attorneys at Friedman, Levy, Goldfarb & Green protect the rights of New Yorkers in the workplace. No matter whether you are in the Bronx, Brooklyn, Long Island, or anywhere in the New York City metro area, call to schedule a free consultation today.