T H E  N E W  Y O R K  C I T Y  L A W  O F F I C E S  OF





























We Help Employees Take Action

and Recover Fair Compensation

in New York and Across the U.S.









Experienced New York City Employment Attorneys Fight Wrongful Discrimination Based on Criminal Background Checks

Protecting workers from unlawful discrimination

In June, the New York City Council voted to tighten restrictions on criminal background checks of job applicants by New York City employers. The law now prohibits employers from asking any job applicant about pending arrests or previous criminal convictions, or from conducting any formal or informal criminal background check on an applicant, until after they have made a conditional offer of employment. While this is good news for many job applicants, the law also includes certain exemptions for employers which may leave many job seekers wondering how a past arrest or conviction may still affect their ability to get a job.

If you are looking for a job, and you believe that a prospective employer wrongfully based their hiring decision on a previous arrest or conviction, the experienced New York City employment attorneys at Hepworth, Gershbaum & Roth PLLC can help. We closely follow every development and change in employment law, not just in New York City, but at the state and federal levels as well, and we consider it our duty to both our clients and our community to ensure area employers are held to these laws.

What do I have to disclose to my employer?

Under current New York law, employers are generally not permitted to base a hiring or termination on a previous arrest or criminal accusation that:

·        Is not currently pending;

·        Has been resolved in favor of the applicant or employee, such as by dismissal or acquittal;

·        Was resolved by a youthful offender adjudication; or

·        Resulted in a sealed conviction.

Employers are also not permitted to ask about the circumstances behind any of the above. Also, an employer is not permitted to ask an employee or applicant about a pending arrest or prior conviction until after a conditional offer of employment has been made.

There are certain exceptions built into the statute. People applying for a position as a police officer can be required to disclose such information, as are people applying for a gun license. The law also does not apply if another city, state or federal law requires an employer to conduct a criminal background check, or bars employment based upon criminal history.

What is my employer entitled to know and ask about?

Once an employer has made a conditional offer of employment to an applicant, that employer may then conduct an inquiry into that person’s criminal background. At this stage, applicants and employees who misrepresent prior convictions are not entitled to protection should those convictions be discovered; however, employers are not permitted to ask about the circumstances of an arrest that did not result in a conviction, resulted in a youthful offender adjudication, or for which a conviction was sealed, although they are permitted to seek proof of disposition of such cases.

After making a conditional offer of employment, and conducting a proper inquiry into an applicant’s criminal background, an employment or termination decision based on a past conviction or conviction is only lawful when:

·        The conviction happens during employment;

·        There is a direct relationship between the offense and the specific type of employment at issue; or

·        Employment would pose an “unreasonable risk” to the employer’s property, or to the safety or welfare of others

Determinations of an adequate “direct relationship” or the relative reasonableness of risk are based on factors such as the time elapsed since the crime, the age at which the crime was committed, the seriousness of the offense. In addition, should an employer withdrawn an employment offer based upon a conviction or pending arrest, he or she must explain that decision in writing.

Put a skilled New York City employment law attorney on your side today

It is New York state public policy to encourage the employment of people who have criminal records. When an employer revokes a job offer, and states in writing that a past conviction or pending arrest is the reason for doing so, you have three days to respond to that revocation. The experienced New York City employment attorneys at Hepworth, Gershbaum & Roth PLLC review the written revocation, and to determine your appropriate response to the employer. To learn more, and for a free, confidential consultation with a knowledgeable New York employment attorney, we urge you to contact our Manhattan office today at 212-545-1199 or via email.





Contact an employment law attorney in New York today for a free initial consultation and determine whether you have a case. For a free initial consultation, you can contact us online or by phone.

CALL US TODAY! 212-545-1199