New York Law on Employer Use of Arrest and Conviction Records

An estimated 65 million Americans have a criminal record. If you are one of them, you might be in for a difficult job search. Surveys show that a majority of employers – a whopping 92%, according to one recent survey – check criminal records when hiring, at least for some jobs. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete in today's tight job market.

Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. New York law gives applicants a number of protections in this situation, too.

Federal Protections for Applicants With a Criminal Record

Two federal laws provide some protections for applicants with criminal records.

Title VII: Discrimination Based on Criminal Records

Title VII of the Civil Rights Act of 1964 prohibits discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

• the nature and gravity of the criminal offense or conduct
• how much time has passed since the offense or sentence, and
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

The EEOC also has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

The Fair Credit Reporting Act: Inaccurate Records

The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. Criminal background checks may include errors, such as information on convictions that have been expunged, multiple listings of the same offense, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, and even records that belong to someone else entirely.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:

• Get the applicants written consent ahead of time.
• Notify the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
• Give the applicant notice after the employer makes a final decision not to hire him or her based on the information in the report.

Firms that run background checks for employers also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

New York Law on Use of Criminal Records

New York gives applicants a number of protections when it comes to employer use of criminal records in making hiring decisions. Employers may not ask about or consider arrests or charges that did not result in conviction, unless they are currently pending, when making hiring decisions. They also may not ask about or consider records that have been sealed or youthful offender adjudications.

Employer with at least ten employees may not refuse to hire an applicant based on a criminal conviction unless hiring the applicant would pose an unreasonable risk to property or to public or individual safety, or the conviction bears a direct relationship to the job. The law defines a "direct relationship" strictly to mean that the nature of the criminal conduct underlying the conviction has a direct bearing on the applicant's fitness or ability to perform one or more of the duties or responsibilities that are necessary related to the job.

An employer that considers an applicant's prior conviction must look at these eight factors:

• the state's public policy to encourage the hiring of those who have been convicted of crimes
• the duties and responsibilities that are necessarily related to the job
• whether the conviction has a bearing on the applicant's ability to perform those duties and responsibilities
• how much time has passed since the conviction(s)
• how old the applicant was at the time of the offense
• the seriousness of the offense
• any information the applicant provides about his or her rehabilitation, and
• the employer's legitimate interest in protecting property and the safety and welfare of individuals and the public.

An employer who decides not to hire someone based on a criminal conviction must, upon the applicant's request, provide a written statement of the reasons for the decision. This statement must be provided within 30 days of the request.

Employers who hire or retain an employee with a criminal record, after considering the eight factors above and making a reasonable, good faith decision that the evidence militates in favor of hiring or retention, enjoy some legal protection. If the employer is later sued for negligent retention or hiring by someone who is harmed by the employee's actions, there is a rebuttable presumption that the employee's criminal history should not be admitted into evidence. As a result, the jury considering whether the employer acted carelessly in hiring or keeping the employee won't know that the employee had a criminal record of which the employer was aware.