Inquiring About Criminal History in the Initial Stages of the Hiring Process Is Now Unlawful for Most New York City Employers

Numerous states and cities around the country, including New York City, have enacted laws prohibiting employers from inquiring about a job applicant’s criminal history during the initial stages of the hiring process. Many employers have, in the past, stated outright that they would not consider job applicants with a criminal record, regardless of whether it was relevant to the job. With people all over the country struggling to find work, a criminal history is a nearly impossible barrier for many people. State laws in New York already prohibit some discrimination against job applicants with criminal records, but New York City’s new law, which took effect on October 27, 2015, prohibits employers from inquiring about a criminal record in job applications. This provides an additional layer of protection for applicants and helps them get a fair opportunity.

Categorically denying employment opportunities to people with criminal records not only puts those people in a precarious situation, but it also puts a burden on the rest of society to support an essentially unemployable population. One could further argue that it deprives employers of a complete applicant pool, since the mere fact of a criminal history often has nothing to do with an individual’s qualifications for a particular job. Some criminal history is relevant to a particular job—a bank has a legitimate reason not to want to hire someone with convictions for embezzlement or securities fraud—but a blanket ban on applicants with criminal records serves no such purpose.

This sort of practice also implicates other areas of employment law. According to the New York Times, approximately 10 percent of all American men in 2010 had a felony conviction, and the percentage was much higher—just over 25 percent—among black men. The Equal Employment Opportunity Commission (EEOC) has long considered employment discrimination based on criminal convictions to be a short distance from discrimination that falls under Title VII of the Civil Rights Act of 1964, particularly race discrimination. It issued its most recent enforcement guidance on this issue in 2012.

New York state law provides some protection with regard to employment discrimination based on criminal history. Employers with 10 or more employees may not discriminate against a person based solely on the fact that a person has a criminal record, unless a “direct relationship” exists between the criminal history and the specific job, or the person’s employment “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” N.Y. Corr. L. §§ 750(2), 752; N.Y. Exec. L. § 296(15). Employers are also prohibited from inquiring about criminal history in cases where the records have been sealed or expunged. N.Y. Exec. L. § 296(16).

Under New York City’s Fair Chance Act, signed by the mayor in June 2015, employers in the city with four or more employees are prohibited from:

– Stating in job advertisements that applicants with felony records will not be considered, or that a criminal background check is required;
– Inquiring about criminal history on a job application; and
– Inquiring about criminal history during a job interview.

Employers may conduct a criminal background check once they have extended a conditional offer of employment to an applicant. If they find a criminal history, employers must consider whether that history has any bearing on the job in question, as well as mitigating factors like the seriousness of the offense, how long ago it occurred, and evidence of the applicant’s good character. They must also notify the applicant in writing and give the applicant three days to respond. Exceptions may apply to jobs that require background checks under federal law.

The employment discrimination at Phillips & Associates represent job seekers and employees who have faced discrimination and other unlawful practices in the greater New York City area. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with an experienced and knowledgeable advocate for employee rights.

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