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 US
|
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 |
|
|
|
|