PRIOR ARREST RECORDS, YOUTHFUL OFFENDER ADJUDICATIONS AND SEALED RECORDS
It is an unlawful discriminatory practice for an employer to make any inquiry about any arrest or criminal accusation of an individual, not then pending against that individual, which has been resolved in favor of the accused or resolved by a youthful offender adjudication or resulted in a sealed conviction. It is unlawful to require any individual to divulge information pertaining to any such arrest or criminal accusation or to take any adverse action based on such an arrest or criminal accusation.
This protection is provided by Human Rights Law §296(16).
What is unlawful?
It is generally unlawful to ask an applicant or employee whether he or she has ever been arrested or had a criminal accusation filed against him or her. It is also generally unlawful to inquire about youthful offender adjudications or sealed records. It is not unlawful to ask if a person has any currently pending arrests or accusations. It is also not unlawful to inquire about convictions, see section on Previous Conviction, below.
It is generally unlawful to require an individual to divulge information about the circumstances of an arrest or accusation no longer pending. In other words, the employer cannot demand information from the individual accused in order to “investigate” the circumstances behind an arrest. It is not unlawful to require an employee to provide information about the outcome of the arrest that occurred while an individual was employed by that employer, i.e. to demonstrate that it has been terminated in favor of the accused. The agency may be able to take action against an employee for the conduct that led to the arrest but Human Rights Law §296(16) provides that no person “shall be required to divulge information” pertaining to the arrests resolved as set out below.
Pending arrest or accusation.
As long as an arrest or criminal accusation remains pending, the individual is not protected. The agency may refuse to hire or may terminate or discipline the employee in accordance with applicable law or collective bargaining agreement provisions. The agency may also question the employee about the pending arrest or accusation, the underlying circumstances, and the progress of the matter through the criminal justice system.
However, if the employee is arrested while employed, is not terminated by the employer, and the arrest is subsequently terminated in favor of the employee, the employee then becomes protected. After a favorable termination, the employer cannot initiate an adverse action against the employee based on the arrest and cannot question the employee about the matter. The employer can require that the employee provide proof of the favorable disposition in a timely manner.
What specific circumstances are protected?
The arrest or criminal accusation must have been:
- dismissed, pursuant to Criminal Procedure Law (CPL) 160.50;
- disposed of as a youthful offender adjudication, pursuant to CPL 720.35;
- resulted in a conviction for a violation, which was sealed pursuant to CPL 160.55; or
- resulted in a conviction, which was conditionally sealed pursuant to CPL160.58.
Whether or not a record is sealed is a factual question. The sealing provisions of CPL 160.50 have been applied automatically to rap sheets since November 1, 1991, if a case is sealed and the court indicates such in its disposition reporting system, that particular criminal history is automatically sealed by the Division of Criminal Justice Services (DCJS). Prior to this time, a judge had to specifically order that the record be sealed. If an individual has a case that was terminated in his or her favor prior to November 1, 1991, it may still appear on his or her criminal history; pursuant to CPL 160.50(4) the individual may ask the Court for an order to have the record sealed. The applicant or employee is responsible to know the status of a sealable conviction. If it is not in fact sealed, then it is a conviction record that can be required to be disclosed.
The Human Rights Law provides that the above protections do not apply to applications for a pistol license or in relation to an application for employment as a police or peace officer. For those positions, arrests or criminal accusations that are sealed pursuant to Criminal Procedure Law 160.50 may not be subject to inquiry, demands for information, or be the basis of adverse action. However, the other types of terminations (youthful offender adjudication or convictions sealed pursuant to CPL 160.55 or 160.58) may be inquired into and taken into consideration for jobs with law enforcement agencies.
PREVIOUS CONVICTION RECORDS
It is unlawful to deny any license or employment, to refuse to hire, or terminate, or take an adverse employment action against an applicant or employee, by reason of his or her having been convicted of one or more criminal offenses, if such refusal or denial is in violation of the provisions of Article 23-A of the Correction Law. The Correction Law provides the standards to be applied and factors to be considered before an employment decision may be based on a previous conviction, including the factor that it is the public policy of the State of New York to encourage the licensure and employment of those with previous criminal convictions
This protection is provided by Human Rights Law § 296(15), in conjunction with Article 23-A of the Correction Law.
Factors from the Correction Law.
The Correction Law provides that an employer may not refuse to hire, or terminate an employee, or take an adverse employment action against an individual, because that individual has been previously convicted of one or more criminal offenses, or because of a belief that a conviction record indicates a lack of "good moral character," unless either there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held, or employment of the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. 1
In order to determine whether there is either a direct relationship or unreasonable risk, the employer must consider the following factors set forth in the Correction Law:
- The public policy of this State, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
- The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
- The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
- The time which has elapsed since the occurrence of the criminal offense or offenses.
- The age of the person at the time of occurrence of the criminal offense or offenses.
- The seriousness of the offense or offenses.
- Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
- The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. 2
In making the determination, the employer must give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the individual, which creates a presumption of rehabilitation in regard to any offense specified in the certificate. 3
The factors must be applied on a case-by-case basis and each of the factors must be considered. The employing agency must take into account the individual’s situation by analyzing factors (d) through (g) and must also analyze the specific duties and responsibilities of the job pursuant to factors (b), (c) and (h). If any additional documentation is needed, it must be requested of the applicant or employee before any adverse determination is made. A justification memorandum that merely tracks the statute but without rational application of the factors to the facts of the case may lead to a finding that an adverse determination was arbitrary and capricious.
It is not unlawful to discriminate if, upon weighing the factors set out above, the previous criminal offense bears a direct relationship to the job duties, or if employment of the individual would involve an unreasonable risk to safety or welfare, as explained in more detail above.
Conviction must be “previous.”
Individuals are protected for previous convictions. A conviction that occurs during employment does not entitle the individual to these protections. An individual may be required to disclose previous convictions, unless they are sealed, as explained in more detail above.
Inquiries and misrepresentation.
Unlike many other areas covered by the Human Rights Law, an employer is not prevented from asking an individual to disclose prior convictions as part of the employment application process or at any time during employment.
If the employer learns at any time that that an applicant or employee has made a misrepresentation with regard to any previous conviction, it may be grounds for denial or termination of employment. 4
Interaction with the arrest provisions.
The arrest provisions of the Human Rights Law interact with the conviction provisions of the Correction Law. Although it is lawful to ask about previous convictions, it is unlawful to ask about previous arrests resolved in an individual’s favor, or about youthful offender adjudications, or about convictions that have been sealed pursuant to CPL 160.50, 160.55 or 160.58. If any individual with a youthful offender record or a sealed conviction states that he or she has no previous convictions, this is not a misrepresentation. The employer is not entitled to any information about youthful offender records or sealed convictions.
Enforcement only by court action.
A State employee or an applicant for State employment cannot file a complaint with the Division of Human Rights regarding denial of employment or licensing due to a previous conviction. Such an individual can pursue enforcement only by filing an Article 78 proceeding in State Supreme Court. However, State employees may file complaints with respect to the Prior Arrest provisions of the Human Rights Law with the Division of Human Rights. In relation to actions of private employers, the State Division of Human Rights and the NYC Commission on Human Rights may enforce the provisions of Article 23-A of the Correction Law.
1 - N.Y. Correction Law §752.
2 - N.Y. Correction Law §753.1.
3 - N.Y. Correction Law §753.2.
4 - N.Y. Correction Law §751; see also Civil Service Law §50(4).