New York State and City law prohibit employers from considering prior arrests at all. However, an employer may ask about and consider any open arrests that have not yet resulted in a disposition. Employers may ask about criminal history. An employer may refuse to hire an individual (or may fire an employee) based on a previous criminal conviction if: (1) there is a direct relationship between the prior conviction and the job for which the employee is applying, or (2) hiring the applicant would pose an undue risk to property or safety of others in the workplace. In determining whether there is a direct relationship between an individual's prior conviction and the job for which he or she is applying, an employer must consider:
- Whether the prior conviction would affect the individual's ability to perform his or her job duties and responsibilities
- When the last conviction occurred
- The individual's age at the time of conviction
- Seriousness of the crimes committed
- Whether there is any particular need to protect property, the public or a specific group of people
- Any information provided regarding rehabilitation (positive changes made since the conviction or good conduct)
- Whether the individual obtained a "Certified of Relief from Disabilities" or a "Certificate of Good Conduct"
Note that an employer with fewer than four employees is not bound by these rules.
If asked about arrests or convictions on a job application, applicants are only required to disclose open arrests and convictions. If the applicant does not have any open arrests or prior arrests that resulted in convictions, he or she may answer "no" to these questions. Applicants should not lie on a job application. If an employer finds out that the applicant lied, it may refuse to hire the applicant. Similarly, if an employer finds out that an employee lied previously, the employer may fire the employee for lying. An applicant who has been convicted of a crime is entitled to know in writing within 30 days the reason an employer has refused to hire him or her.
Contact Fisher Taubenfeld LLP
We offer a free and confidential phone consultation in which you can discuss your workplace mistreatment. Send an email or call 646-741-3490, toll free 866-654-0343, to speak with an experienced New York workplace discrimination lawyer.
Serrins Fisher LLP was dissolved effective September 1, 2016. Liane Fisher and Michael Taubenfeld are happy to announce their new practice, Fisher Taubenfeld LLP. To reach Alan Serrins please call (212) 384-0202.