Your client takes an ACD. The case is over. Six weeks later they call you again, and it isn’t a criminal problem.
They got fired. Or an offer evaporated after a background check. Or HR called them in and started asking about something that, as far as the court is concerned, never happened.
That call is usually where it ends. It doesn’t have to be. Often the employer has already done something unlawful, and nobody has told your client.
Ask where the job is before anything else. New York City has its own statute, and procedurally it demands far more of employers than state law does. Outside the city, check for a local ordinance before assuming state law is all there is — Westchester County’s human rights law bars preliminary conviction and arrest inquiries and carries no employee-size threshold at all, and Rochester has its own screening ordinance. Then work through the disposition, because the disposition decides almost everything.
The case ended in your client’s favor
Executive Law § 296(16) makes it unlawful to ask about, or act adversely on, an arrest or accusation not then pending that was terminated in your client’s favor. It also covers an ACD, a youthful offender adjudication, a violation-level conviction sealed under CPL § 160.55, and a conviction sealed under § 160.57, 160.58 or 160.59. The statute deems an adjournment in contemplation of dismissal not to be a pending action, which is why your client is protected during the adjournment period and not only after the dismissal. If the ACD is revoked and the case restored to the calendar, the protection goes with it.
Someone asked for this information in violation of the subdivision “may respond as if the arrest, criminal accusation, or disposition of such arrest or criminal accusation did not occur.” Your client could have answered no, provided no statute required or permitted the question.
That proviso matters. The prohibition yields where a statute specifically requires or permits the inquiry, so licensed and regulated positions change the analysis. And it doesn’t reach police and peace officer applications, law enforcement agency employment as to youthful offender adjudications and certain sealed convictions, or firearms licensing.
The State Human Rights Law has no employer-size threshold. Executive Law § 292(5) covers “all employers within the state.” A two-person shop in Syracuse is covered.
The conviction predated the job
Article 23-A reaches more than applicants. Correction Law § 751 covers an application and also “any license or employment held by any person whose conviction of one or more criminal offenses in this state or in any other jurisdiction preceded such employment.” A client hired years ago and fired today over an old conviction is covered.
Section 752 bars denial or adverse action “by reason of the individual’s having been previously convicted,” and also by reason of a finding of lack of good moral character where that finding rests on the conviction. Watch for the second branch. Employers rarely write that they rejected someone for a conviction; they write trustworthiness, judgment, honesty, character.
The two exceptions are a direct relationship to the specific employment, or an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Section 753 then requires the employer to weigh eight factors. Four tend to help your client: time elapsed, age at the time of the offense, seriousness, and evidence of rehabilitation. Two are what the employer will lead with: the bearing of the offense on fitness to perform the specific duties, and the employer’s legitimate interest in protecting property and safety. Know both halves before you tell anyone they have a case.
Article 23-A covers private employers with ten or more employees under § 750(2), and public agencies regardless of size. It supplies the standard, not the claim — Executive Law § 296(15) is what makes a violation an unlawful discriminatory practice. Section 751 also carves out cases where a law imposes a mandatory forfeiture, disability or bar that no executive pardon or certificate has removed.
Which is where your own work comes back around. If you obtained a certificate of relief from disabilities or a certificate of good conduct, § 753(2) requires the employer to consider it and provides that it “shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.” The presumption is rebuttable and entitles no one to a job. But it sits inside an analysis the employer has to perform, and one that never engaged with it has a hole in its own reasoning.
New York City: a pending case, or one that arose on the job
Two situations fall outside Article 23-A and into the City law. A client who applies while a case is open. And a client already working when the arrest or conviction happens.
Administrative Code § 8-107(10)(b) and (c) govern both, and they run on the City’s own “relevant fair chance factors” rather than Article 23-A’s. The employer must consider those factors and then find either a direct relationship between the conduct and the employment, or that granting or continuing the employment would pose an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
The City’s factor list asks whether the person was twenty-five or younger at the time rather than age generally, and it drops the elapsed-time factor entirely, which can hurt an older client with a remote conviction.
Then there’s the sequence, which is where employers get caught. Under § 8-107(11-a), a covered city employer may make no criminal history inquiry until after a conditional offer. Before adverse action on what it finds, it must:
- Give the applicant the inquiry in writing;
- Request information on the relevant fair chance factors;
- Perform the individualized analysis;
- Provide a written copy of it, with supporting documents and the reasons; and
- Allow no less than five business days to respond, holding the position open.
For someone already employed, the employer must request the information, perform the analysis, and provide it in writing, with a reasonable time to respond. Don’t apply the five-day rule or the hold-open requirement to an incumbent.
Instead the employer runs the check, sees the conviction, and rescinds that afternoon. That’s a violation whether or not it could have reached the same result lawfully.
The carve-outs are narrower than employers assume. They cover police and peace officers and law enforcement agency employees, certain DCAS-designated positions, and action under a law requiring a criminal background check or barring the employment. A law that requires the check is enough. It doesn’t have to bar the job. And a designated position isn’t a free pass, because adverse action there still requires the written analysis.
The City law reaches employers with four or more employees. Read the test carefully before you screen someone out on headcount: an employer is excluded only if it had fewer than four people at all times during the twelve months before the practice began and through its end, and the count includes natural-person independent contractors and the employer’s parent, spouse, domestic partner or child if employed by the employer. A three-person shop that used two contractors last year is covered.
What makes or breaks these cases
Employment in New York is at will. An employer that runs the process, performs the analysis and documents a direct relationship can lawfully reach a result that feels indefensible.
Causation is the fight in most of these. The employer produces performance history, a reduction in force, a safety rationale, and the question becomes whether the record supports it. Arbitration agreements are common, and they change both the forum and the economics. A client who was never qualified for the job has a weak claim no matter what the employer did with the background check.
The strong cases look alike. A clean record until the conviction surfaced. An employer that skipped the written process. A disposition that was never disclosable. An offense with no plausible connection to the duties.
Filing in the wrong place kills the better claim
Filing with the State Division forecloses a court action on both the state claim and the City claim. So does filing with the City Commission. Executive Law § 297(9); Administrative Code § 8-502(a). The Division is the better-known agency, so that’s where a client goes on their own, and they lose the City claim along with the state one — and for most of these fact patterns the City claim is the stronger of the two.
An EEOC filing is different. Section 8-502(a) exempts a complaint filed with a federal agency and later referred, and § 297(9) exempts a complaint the EEOC itself files to meet its federal deferral obligations, which under the worksharing arrangement is how a dual-filed charge reaches the Division. A client who went to the EEOC first has generally not elected anything.
An election has exits, and they aren’t the same on both sides. Under § 297(9), the state claim survives dismissal for administrative convenience, untimeliness, or annulment of the election, and a complainant may ask before a hearing that the complaint be dismissed and the election annulled so the claim can proceed in court. Section 8-502(b) revives the City claim only on administrative convenience or annulment. Untimeliness won’t do it.
As for the clock, Executive Law § 297(5) now allows three years to file with the Division. That took effect February 15, 2024 and applies to claims arising on or after that date, so a 2026 call about a 2023 termination doesn’t get three years.
Tell them to call an employment lawyer before filing anywhere.
New Jersey gives your client protections with no way to enforce them
Start with what New Jersey does not give your client: a right to say no. Nothing in the Opportunity to Compete Act lets an applicant deny a record or decline to answer. The Act restricts what the employer may ask and gives the applicant nothing to say. It runs the other way, in fact — under N.J.S.A. 34:6B-14(b), a voluntary disclosure during the initial application process unlocks the employer’s right to inquire.
The right to answer as though it never happened comes from expungement alone. N.J.S.A. 2C:52-27 provides that, unless otherwise provided by law, an expunged arrest and conviction are deemed not to have occurred and your client may “answer any questions relating to their occurrence accordingly” — subject to disclosure of the expungement itself under 2C:52-8b, disclosure to a court weighing a later diversion program, and disclosure by applicants to the judicial branch or a law enforcement or corrections agency.
The Opportunity to Compete Act does bar inquiry into a record “including an expunged criminal record” during the initial application process, which ends at the first interview, and bars refusing to hire on a record that “has been expunged or erased through executive pardon.” It reaches employers with fifteen or more employees over twenty calendar weeks. The inquiry ban — though not the expungement limit — lifts entirely for law enforcement, corrections, judiciary, homeland security and emergency management positions, for jobs where a background check is legally required or a conviction may preclude employment, and for designated fair-chance hiring programs.
There’s also N.J.S.A. 34:6B-21, which given current dispositions may be the provision your clients trigger most. An employer may not rely solely on, require disclosure of, or take adverse action solely because of an arrest, charge, conviction or delinquency adjudication for the enumerated marijuana and hashish offenses, including school-zone and paraphernalia counts and out-of-state equivalents, “regardless of when” it occurred. The same five categories of position are excepted.
Then the catch that runs through all of it. Under N.J.S.A. 34:6B-18, the statutory penalties are “the sole remedy,” nothing in the act creates “a private cause of action,” and evidence of a violation is inadmissible in any proceeding other than one to enforce the act. Section 34:6B-21 says the same about itself. So a New Jersey client who was asked an unlawful question has no claim arising from the question. If there’s a case, it comes from somewhere other than these statutes. New Jersey is thinner ground, and I’d rather you know that going in.
The triage
- Where is the job? The city, elsewhere in New York with a possible local ordinance, or New Jersey.
- How did the case end? A favorable termination, ACD, youthful offender adjudication or sealed conviction means the employer should not have been asking. No size floor.
- Did the conviction predate the job? If so, Article 23-A, whether your client was an applicant or already working.
- Was the case pending when they applied, or did it arise on the job? If the job is in the city, the City factors and the Fair Chance process apply.
- Did anyone hand them anything in writing? For a city applicant, a rescission with no written analysis and no five business days is a violation on its own. For an incumbent, the analysis is still required without the five days.
Then tell them to keep everything. The application, the background check report, the rescission email, the name of whoever delivered the news, the date. Clients throw all of it away, and that paper is the difference between a straightforward case and a hard one.
If the answers point somewhere, your client has something time-sensitive. Call me and I’ll tell you in a few minutes whether there’s anything there, including when there isn’t. Your client shouldn’t walk away treating the lost job as part of the price of the criminal case.
This article is general information about New York and New Jersey law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Every matter turns on its own facts, and the law changes.
Jeffrey Risman is a principal at Risman & Risman, P.C. He is admitted in New York and New Jersey and represents employees in discrimination, retaliation, restrictive covenant and executive separation matters. 212-233-6400 | www.risman-law.com