The New York City criminal and arrest record discrimination attorneys of Risman & Risman, P.C. represent employees who are denied opportunities or mistreated because of criminal history information. New York law protects qualified workers with past convictions and those with arrests that did not result in convictions. Employers must follow strict procedures before taking action based on criminal history.
What is criminal or arrest record discrimination?
This occurs when an employer rejects, disciplines, or otherwise penalizes an applicant or employee due to their criminal history without following the law. Examples include blanket “no-hire” policies for anyone with a conviction, or withdrawing an offer because of an old, unrelated conviction without an individualized assessment. Such blanket bans are unlawful.
New York State protections: Article 23-A
Under Correction Law Article 23-A, an employer may not deny employment or take adverse action solely because of a prior conviction unless either (1) there is a direct relationship between the offense and the job or (2) hiring would create an unreasonable risk to people or property. The employer must weigh the statutory factors outlined in Article 23-A before making a decision. Upon request, a written explanation is required.
Separately, Executive Law § 296(15) and (16) make it unlawful to discriminate in violation of Article 23-A and bar inquiries into, or adverse action based on, non-pending arrests that were resolved in the person’s favor, youthful offender adjudications, or sealed cases.
New York City protections: the Fair Chance Act
In New York City, employers generally cannot ask about an applicant’s criminal history until after making a conditional job offer. Only then may they consider convictions, and they must follow the Fair Chance process, which includes: (1) conducting an individualized analysis using Article 23-A (for convictions) or the NYC Fair Chance factors (for pending cases), (2) providing the individual with the written analysis and any background report, and (3) giving the individual at least five business days to respond before a final decision.
Pending criminal cases: NYC’s 2021 amendments require a Fair Chance analysis for pending arrests or criminal accusations as well; employers must use the specific NYC factors post-offer and allow the same opportunity to respond.
Non-conviction arrests: Arrests that did not result in conviction and other non-conviction records cannot be considered under state law, and the New York City Human Rights Law incorporates these protections.
Current employees: If an employer considers taking adverse action against a current employee based on criminal history, the Fair Chance process still applies, including the written analysis and the five-business-day response period.
Limited exceptions: Pre-offer inquiries are permitted only where a background check is required by law or for positions like police or peace officers, roles listed as exempt by DCAS, or jobs barred by specific statutes.
Standing up against criminal record discrimination
These laws are designed to ensure fair, case-by-case consideration. When employers ignore the required analysis, skip the Fair Chance process, or rely on stereotypes, they violate the law.
How can we help
Risman & Risman, P.C. advises applicants and employees on their rights, challenges unlawful denials or terminations, and holds employers accountable when they fail to comply with Article 23-A, Executive Law § 296, or the NYC Fair Chance Act. Please contact us today for a free and confidential phone consultation at (212) 233-6440 or reach out to us online.
