New York is an employment “at-will” state
In New York, it is understood that in most circumstances no one holds the right to a job, but does have the right to not be discriminated against when seeking or retaining employment. New York has historically upheld at-will employment. The doctrine of at-will employment is defined as employment that may be terminated at any time and for any reason — or no reason at all — by either an employer or employee. For a historical analysis of the doctrine of at-will employment see Stadler, Ronald B. “History of At-Will Employment Law in the USA.” 30 September 2000. www.rbs2.com/atwill.htm.
New York State and New York City have employment anti-discrimination protections for people with criminal record histories
New York State and New York City law state that an employer may not inquire and may not act upon adversely information pertaining to an applicant’s prior arrests or criminal charges that were terminated favorably. The New York State Human Rights Law prohibits public and private employers and occupational licensing agencies from denying any individual a job or license (or otherwise discriminating against the person) because of any arrest that did not result in conviction. See Executive Law §296 (16). This law does not apply to police or other law enforcement positions.
New York City’s Human Rights Law also protects persons who have had arrest(s) not followed by conviction from employment discrimination. See Administrative Code of the City of New York §§ 8-107(10), (11). Click here to view legislation.
Although employers and licensing agencies are permitted to ask about and consider convictions, New York State Corrections Law Article 23-A §§ 750-755 protects people with criminal convictions from being unfairly denied jobs or occupational licenses solely because of their conviction record. Employment can be denied, however, if: (1) there is a direct relationship between the criminal offense(s) committed and the employment sought; or (2) the applicant would pose an unreasonable risk to property or the safety or welfare of others. Click here to view legislation.
There is no federal law that proscribes discrimination of people with criminal records; however, the Equal Opportunities Commission (EEOC) has supplied guidelines for employers when considering applicants with criminal records
Federal law, Title VII of the Civil Rights Act of 1964 (which is enforced by the federal Equal Employment Opportunity Commission (EEOC) govern employment activities. Title VII prohibits private employers and state and local government agencies from discriminating in employment decision on the basis of race, color, gender, national origin, or religion. Although, people with criminal records are not a protected class, the EEOC has determined that policies that exclude individuals from employment on the basis of their arrest and conviction records may violate Title VII because such policies disproportionately exclude minorities, in light of statistics showing they are arrested and convicted at a rate significantly in excess of their representation in the population. See EEOC Dec. No. 78-35, 26 Fair Empl. Prac. Cas. (BNA) 1755, 2 (June 8, 1978). Equal Employment Opportunity Commission, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(k). www.eeoc.gov/policy/vii.htm
According to the EEOC, exclusion on the basis of conviction records violates Title VII unless there is a business necessity for the employment decision. To establish this, the employer must show that is considered:
- the nature and gravity of the offense(s);
- the time that has passed since the conviction and /or completion of the sentence; and
- the nature of the job sought.
Federal law requires employers charged with violating these guidelines to show that the applicant’s conviction was job-related, and that one or more of these factors was sufficiently negative to warrant his or her decision not to hire the person with a criminal history. Employers also cannot use arrest records to exclude person from employment unless there is a business justification. If it can be demonstrated that the applicant actually engaged in the conduct for which he or she was arrested and that the conduct is job-related and relatively recent, the exclusion would be justified. See EEOC, Notice No. N-915-061, Policy Guidance on the Consideration of Arrest Record in Employment Decision under Title VII of the Civil Rights Act of 1964, (September 7, 1990). Click here to view notice.
Very few employers are statutorily authorized to receive criminal record information directly from the New York State’s criminal record repository, the Division of Criminal Justice Services
Many public employers and occupational licensing agencies in New York are authorized by statute to obtain copies of applicants’ and employees’ criminal history record report — record of arrest and prosecution also known as rap sheet — from the Division of Criminal Justice Services (DCJS), New York State’s criminal record repository. Certain private employers are also authorized to obtain criminal history information from DCJS as well as from the Federal Bureau of Investigation (FBI). Below is a list of some employers in New York State who are allowed to obtain records from DCJS:
- Public employers (federal, state, and local government agencies), including all law enforcement agencies
- Occupational licensing agencies
- Child care agencies
- Hospitals
- Museums
- Home health aid agencies
- Financial institutions
- School bus driving companies
- Nursing home facilities
- Security guard companies
Employers use various sources to obtain criminal history information
Most private employers do not have access to individuals’ rap sheets. However, employers are entitled to use other sources to obtain criminal record information. New York State allows employers to use the Office of Court Administration to conduct background checks or consumer reporting companies for employment purposes. New York State’s Fair Credit Reporting Act (New York General Business Law § 380) and the federal Fair Credit Reporting Act (15 U.S.C. § 1681) govern background check companies and the production and use of these reports.
For more information about the federal FCRA see http://www.hirenetwork.org/consumerreports.html. New York’s FCRA, N.Y. Gen. Bus. Law § 380 et seq., regarding employer’s notification obligations when conducting background checks see § 380-b; regarding job applicant’s rights to review and dispute records §§ 380-d-f; and regarding convictions and arrests reported in background checks see § 380-j.
Criminal convictions cannot be sealed and are public information indefinitely
A criminal conviction, either a plea or finding of guilt for a misdemeanor or felony offense, cannot be sealed. These records are available to the public from the Office of Court Administration and to those entities authorized by law, from the Division of Criminal Justice Services. However, New York has two sealing statutes that apply to arrests that did not lead to conviction and certain non-criminal convictions. When a criminal action is terminated in favor of the accused, the arrest and prosecution of the individual is deemed a nullity, and he or she is restored to the legal status occupied before the arrest or prosecution. Criminal Procedure Law 160.50 authorizes cases disposed of in favor of the defendant—dismissal, acquittal, declined prosecution, dismissal by grand jury (also called “no true bill”), and adjournment in contemplation of dismissal (ACD)—to be sealed from the public both in the courts and at the Division of Criminal Justice Service CPL 160.50. Criminal Procedure Law 160.55 authorizes certain violations (non-criminal offenses) to be sealed. These records are available to the public through the Office of Court Administration but are not available at the Division of Criminal Justice Services CPL 160.55.
For more information about sealing records see Legal Action Center’s How to Get and Clean Up Your New York State Rap Sheet.
The stigma associated with having a criminal record often is life long
The stigma of having a criminal is often life-long because society’s perception of people with criminal histories is they are untrustworthy and dangerous. As a result, employers not only conduct background checks, they may also require an applicant to take an honesty test as an additional screening mechanism. Click here to read more about honesty tests www.hirenetwork.org/honestytests.html
There are federal and state statutory bars to occupational licenses and certain jobs
Occupational licensing and employment laws regulate professional, as well as unskilled and semi-skilled occupations. There are over 100 licensing regimes in New York State. Criminal record licensing bars are either automatic or discretionary. Generally, occupational licensing statutes consist of two components: competency and character. Click here to see Legal Action Center’s Occupational Licensing Survey.
The types of jobs with legal prohibitions against individuals with criminal records tend to be in the fields of childcare, education, security, and nursing and home healthcare, where “vulnerable” populations are involved. These industry restrictions have been reinforced in many states through new and stricter state and local legislation. In addition to those industries that are fairly obvious, others that have federal restrictions are financial institutions insured by the Federal Deposit Insurance Corporation, the insurance industry, positions of management in a union or other organization that manages an employee benefit plan, prisoner transportation, and aviation security.
See Federal Occupational Restrictions Affecting People with Criminal Records. National H.I.R.E. Network. 2004. www.hirenetwork.org/fed_occ_restrictions.html
New York State offers Certificates of Rehabilitation to individuals with conviction histories
There are a growing number of occupations closed to people with criminal records. In many instances, these laws require the automatic disqualification of people with felony or misdemeanor convictions without any opportunity to the applicant for the license or job to present evidence showing that he or she has the pertinent qualifications and skills necessary to do the job. New York law provides two forms of certificates of rehabilitation that can be used to lift or mitigate some occupational licensing or employment restrictions, New York Correction Law §§ 700-703, Certificates.
- Certificates of Relief from Disability are available to individuals with any number of misdemeanor convictions but no more than one felony conviction
- Certificates of Good Conduct are available to individuals with two or more felony convictions and any number of misdemeanor convictions, federal convictions, or out-of-state convictions
Both certificates create a presumption of rehabilitation once granted to the individual. See Legal Action Center’s Certificate Pamphlet.