A criminal record is one of the biggest impediments to employment opportunities. The mere fact that someone was once arrested makes some employers wary of hiring them, even if they were never convicted of any offense, and even if the circumstances of the arrest or charge have no bearing on the job they are seeking. New York City employment discrimination lawyers have more tools at their disposal than lawyers elsewhere, thanks to city laws that offer extensive protections for job seekers who are trying to move forward with their lives. The New York City Human Rights Law (NYCHRL) limits employers’ ability to obtain and act on criminal history information. This includes information about convictions and arrests that never resulted in a conviction. A lawsuit filed in early December 2020 alleges that an employer violated the NYCHRL with a policy that denied all applicants with arrest records.
The NYCHRL prohibits employment discrimination on the basis of criminal history, including both convictions and arrests or charges that never led to convictions. The statute draws on state law to protect job applicants with both prior arrests and prior convictions. In either case, an employer may not inquire about criminal history when a person is first applying for a job. The first opportunity an employer has to ask about criminal history occurs when they make a conditional offer of employment. If something in the individual’s criminal history leads the employer to make an adverse decision — such as not hiring them — the employer must follow procedures set forth in the New York State Corrections Law. See N.Y.C. Admin. Code §§ 8-107(10), (11-a); N.Y. Corr. L. § 750 et seq. These procedures include an evaluation of whether the applicant’s criminal history will affect the job they are seeking.
The New York State Human Rights Law (NYSHRL) states that an employer commits an unlawful practice when it discriminates against someone based on one or more arrests that did not result in convictions. N.Y. Exec. L. § 296(16). Under the NYCHRL, an employer may neither inquire about nor make an adverse employment decision based on arrest history if it would violate this provision of the NYSHRL. N.Y.C. Admin. Code § 8-107(11).
In the lawsuit mentioned above, the plaintiff alleges that she applied for a position at the defendant, a New York City insurance company, in 2019. She had been arrested in 2010 and 2017, but neither arrest resulted in any convictions. She states in her complaint that both cases had been resolved by the time she applied to the defendant. The defendant uses a third-party consumer reporting agency to run criminal background checks on job applicants, according to the plaintiff. It also asks applicants about criminal history “as part of its routine policy and practice.”
The defendant allegedly extended a conditional offer of employment to the plaintiff but then demanded documentation of the criminal charges resulting from her arrests. The plaintiff sent documentation, including “a written explanation of the charges establishing that her arrests had been resolved in her favor.” She was later informed that her offer of employment was being rescinded, allegedly “due to the findings in both [her] background check and your fingerprinting FBI report.”
The employment lawyers at Phillips & Associates represent New York City employees in claims of unlawful employment practices such as criminal history discrimination. To schedule a free and confidential consultation with a member of our skilled and knowledgeable team, please contact us today online or at (212) 248-7431.