New Jersey And New York Attorneys Fighting For Employees Impacted By Arrest Or Criminal History Discrimination
Past convictions should not define the future of your career. At Fisher | Taubenfeld LLP, our attorneys represent employees who have been impacted by arrest and criminal record discrimination, helping them protect their careers and their rights.
Can Employers Ask About Past Arrests Or Convictions During The Hiring Process In New York?
New York state and New York City laws prohibit employers from considering prior arrests that did not result in a conviction. However, an employer may ask about and consider open criminal matters that have not yet been resolved. Employers may inquire about criminal history only after extending a conditional offer of employment.
New Jersey and New York City laws both prohibit most employers from asking about criminal history on a job application. 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.
The Details Matter When Employers Consider A Past Conviction
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 the 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 “Certificate 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.
Frequently Asked Questions
If you are an employee with questions about how arrests, convictions or criminal background checks may affect your job, you are not alone. Many workers want to understand their rights and how employers might use a past criminal history in hiring, firing or other workplace decisions. To give you better insight into what you can expect and what protections may apply to you, here are three common questions that our legal team addresses for our clients.
What is the difference between an arrest and a conviction in employment decisions?
An arrest and a conviction are not the same thing in employment decisions. An arrest means custody or accusation of a crime, but it does not mean a court found them guilty. A conviction means a court found the person guilty of an offense because they pleaded guilty or were found guilty after trial. In hiring or firing decisions, employers often treat convictions as more relevant than arrests because a conviction is evidence that the legal process resulted in a finding of guilt, while an arrest alone does not prove wrongdoing.
Can my New Jersey employer fire me because of a past arrest or conviction?
In New Jersey, an employer cannot fire you just because you have a past arrest, especially if the arrest did not lead to a conviction. New Jersey law also places limits on how employers can use criminal records in employment decisions. Employers should consider if the criminal history relates to the job and if sufficient time has elapsed, rather than automatically denying employment or firing someone based on a record.
Some jobs, especially those involving vulnerable populations or certain licensed professions, may have stricter rules. New Jersey’s “Ban the Box” law and anti-discrimination rules might be worth examining if you suspect an employer in the state misused your record.
Are New York employers allowed to run criminal background checks?
Yes, New York employers can run criminal background checks, but there are important legal limits on how they can use the information. Employers in New York can ask about criminal history in many situations, but they must follow state and federal rules, including New York’s protections for applicants and employees with criminal records.
Employers often need to weigh things like the type of offense, the time elapsed and its relevance to the job. They also cannot automatically reject someone solely because of a criminal record without considering those required factors.
What laws protect workers from criminal history discrimination?
New York law limits an employer’s ability to use a person’s criminal record when making hiring decisions. Under Article 23-A of the Correction Law, an employer generally must not reject an applicant because of a conviction unless the offense is directly connected to the position or employing the person would create an unreasonable risk to property or the safety or welfare of others. New York City offers additional protections under its Fair Chance Act, which generally prevents covered employers from seeking or reviewing an applicant’s criminal history before making a conditional offer of employment.
In New York, state and local rules regulate when and how employers can consider criminal history. Title VII of the Civil Rights Act also may apply when a criminal-record policy disproportionately excludes people based on a protected characteristic, such as race or national origin, and the policy is not job-related and consistent with business necessity.
Do employers have to consider how old the offense is?
Yes. New York law requires employers to consider the time that has passed since the offense when evaluating a prior conviction. Employers also must consider factors such as the seriousness of the offense, the person’s age when it occurred and evidence of rehabilitation and good conduct. The passage of time is therefore an important part of the employment decision, although an older conviction is not automatically irrelevant.
Can an employer reject me because of a misdemeanor?
A misdemeanor conviction does not automatically prevent you from getting a job in New York. Before taking adverse action, an employer must assess whether the offense is relevant to the position or whether hiring you would present an unreasonable risk to property or the safety or welfare of others. The employer must also weigh factors required by Article 23-A, such as the position’s duties, the seriousness of the offense, the time since the conviction and any evidence of rehabilitation or good conduct.
For example, a theft conviction may have a closer connection to a job involving significant financial responsibilities than to some other positions. The employer must still evaluate the particular circumstances rather than treating the misdemeanor as an automatic disqualifier.
Can an employer reject me because of a felony conviction?
Having a felony on your record does not by itself prevent you from obtaining employment in New York. Article 23-A requires an employer to look at the circumstances surrounding the conviction before deciding whether it affects your eligibility for a particular position. A conviction may justify a hiring decision when it has a direct connection to the position or when employing you would create an unreasonable risk to property or the safety or welfare of others.
The employer’s review must account for several factors, including the duties of the position, the nature and seriousness of the offense, how much time has passed, your age when the offense occurred and evidence of rehabilitation or good conduct. New York law also recognizes a public policy favoring employment for people with criminal records and requires consideration of applicable certificates of relief from disabilities or certificates of good conduct.
What is the “Ban the Box” law?
“Ban the Box” laws prohibit employers from asking about an applicant’s criminal history on initial job applications. The goal is to give candidates a fair chance to present their qualifications before facing background checks. New York City has one of the strictest “Ban the Box” standards in the nation. Under the Fair Chance Act, covered employers (those with 4 or more employees) cannot inquire about, advertise or search for criminal history, even through informal online searches, until after extending a conditional job offer.
Unlike New York City, New Jersey allows employers to inquire about criminal history after the initial interview process has concluded, rather than forcing them to wait strictly for a conditional job offer.
How do EEOC guidelines apply to criminal history discrimination?
Under Equal Employment Opportunity Commission (EEOC) guidance, employers cannot use criminal history in a way that leads to illegal discrimination under Title VII. For example, employers cannot evaluate criminal records differently based on race, national origin or sex or avoid hiring people with a rap sheet. Employers must show that any criminal history screen is strictly job-related and consistent with business necessity.
Can an employer ask about charges that were dismissed or expunged?
Generally, no. Employers are legally prohibited or strongly restricted from inquiring about expunged or sealed records. Once a record is expunged, it is legally cleared, granting applicants the right to answer “No” if asked whether they have an arrest or conviction record for that specific offense.
What if my criminal history is unrelated to the job?
If your criminal history is unrelated to the specific position you are applying for, an employer generally cannot refuse to hire you solely because of your record.
For a past conviction to legally disqualify you, the offense must have a direct relationship to the essential responsibilities of the role, or your employment must pose an unreasonable risk to public safety or property. If neither condition applies, your record should not bar you from being hired.
Can an employer use my criminal record to deny promotion or pay raises?
In New York, an employer generally cannot deny you a promotion or raise based on your criminal record unless it finds a direct link between your record and the job or an unreasonable risk to safety or property. Before making this decision, the employer must review several factors, including how much time has passed since your conviction, evidence of rehabilitation and the duties of the position.
New Jersey has different rules. Under the Opportunity to Compete Act, covered employers generally cannot ask about or consider criminal history during the initial application process for new job applicants. After that stage, employers may consider past convictions, subject to other applicable laws and restrictions. If you believe your employer used your record unfairly, an employment attorney can review your case, explain which state and local laws may apply and help you understand your options.
What should I do if I think I was discriminated against because of my criminal history?
Start by writing down what happened, including dates, names and any comments about your criminal record. Keep emails, job applications, performance reviews and messages about a denied promotion, raise or termination. Save any written explanation your employer gave for its decision. You can also note how your employer treated other workers in similar situations. An employment attorney can review these details, explain which New York or New Jersey laws may apply and help you decide what to do next.
Can I sue an employer for criminal history discrimination?
You may have legal options if your employer treated you unfairly because of your criminal record and broke the law. Your options depend on where you work and what your employer did. Some claims require you to file a complaint with a government agency before you can sue. Strict deadlines may also apply. An employment attorney can review your case, explain whether you may file a complaint or lawsuit and help you understand the next steps under the relevant state and local laws.
What evidence should I save if I believe I was treated unfairly because of my record?
Keep emails, text messages, job applications, offer letters, performance reviews and notices about hiring, promotions, pay or termination. Save background check results, disclosure forms and messages that discuss your criminal record. Keep any written explanation your employer gave for its decision. Write down when events happened, what people said and who witnessed the conversations. Store these records somewhere secure. An employment attorney can review the evidence, assess whether your employer followed the required review process and help you identify other records that may support your claim.
Navigating background check laws can be complex because state, federal (EEOC) and local laws overlap. Consulting an employment attorney is crucial if you suspect your rights were violated.
Have You Been Denied A Job Because Of A Criminal Record? Contact Fisher | Taubenfeld LLP
Seeking justice in New York or New Jersey can begin with a free and confidential phone consultation with our team. Contact us online or call our law office at 646-741-3490 to speak with us about your workplace discrimination.