If you have a criminal record, you are not alone. It is estimated that about 65 million Americans are in the same situation. If you are looking for a job, having a criminal history may make it difficult to compete, as the overwhelming majority of employers run a background check on applicants.
Fortunately, having a criminal background does not always disqualify you from getting the job. Under both federal and New York law, job seekers with criminal records have some legal protections.
Under the Civil Rights Act of 1964, a blanket policy of refusing to hire all applicants with criminal records may conflict with laws prohibiting discrimination. The Equal Employment Opportunity Commission (EEOC) had issued guidelines that explain how employers can consider an applicant’s criminal past without engaging in unlawful discrimination. Under the guidelines, in considering whether the particular offense should disqualify the applicant from employment, employers must consider:
· The nature of the offense
· The amount of time that has passed since the offense or sentence
· The nature of the job (i.e. where it is performed and how much interaction with others the employee would have)
Under the guidelines, the EEOC has made it clear that employers should give applicants the right to explain their circumstances and provide mitigating information showing that they should not be excluded from consideration.
New York protections
Generally, New York’s legal protections against discrimination based on a criminal background are more comprehensive. Under New York’s Human Rights Law, employers are prohibited from considering arrests or criminal charges that did not result in a conviction (unless they are pending) when making hiring decisions. Additionally, youthful offender adjudications and criminal convictions that are sealed cannot be used as a basis for not hiring an applicant.
Regarding criminal convictions, it is generally illegal for New York employers to refuse to hire an applicant based on a criminal conviction alone, unless 1) hiring the applicant would pose an unreasonable risk to the safety of the public or property; or 2) the conviction bears a direct relationship to the job. Generally, there is a “direct relationship” if the nature of the criminal offense has a direct bearing on the applicant’s ability or fitness to perform a duty that is necessary for the job. Moreover, employers are prohibited from inquiring about a prospective employee’s pending arrest or criminal conviction record until an offer of employment has been made.
If an employer decides not to hire an applicant based on a criminal conviction, he or she must, upon request, provide a written statement of the reasons for the decision within 30 days.
Because this area of the law is complicated and full of exceptions, if you believe that you have been refused a job because of a criminal conviction, it is wise to consult with the experienced employment law attorneys at Serrins Fisher LLP. Our attorneys can listen to your situation and advise you further of your legal rights and options.