Conviction Consequenses - Employment

EMPLOYMENT

DJCS automatically notifies many public employers and licensing agencies about arrests of their employees or licensees. Arrests typically lead to immediate suspensions. Though the employee can request a hearing, the employee must waive his 5th amendment rights at the hearing and testify about the alleged criminal activity (such testimony and written statements are admissible and can affect the criminal case). This impacts any city, town of village employee (i.e.: Department of Education, MTA, and NYCTA).

Licensing agencies are also notified of arrests and may trigger suspension (i.e. DOE, Security guard registration, Taxi and limousine commission, locksmith, real estate broker).

Public offices are also impacted (i.e. police officer, firefighter, court officer, notary public and some elective offices.

Even if an individual has received a favorable disposition of his criminal case such as a dismissal or acquittal, the civil consequences of the criminal case may still pose a negative impact. It is therefore clear that acquittals or dismissals do not mean that a person will escape further consequences.

ARRESTS WITHOUT CONVICTIONS

NYS Human Rights Law (Exec. L. 296(16), prohibits public and private employers and occupational licensing agencies from denying any individual a job or license (or otherwise discriminating against that person) because of any arrest that did NOT result in a conviction. Under CPL §160.50, such arrests should be sealed. CPL §160.60 allows such arrests to be viewed as a legal nullity. However, IT DOES NOT APPLY TO POLICE OR LAW ENFORCEMENT JOBS.

NYC Human rights Law (NYC Admin Code 8-107(11)) offers similar protection.

CONVICTIONS

Correction Law § 750-755 (Art. 23-A) and NYS Human rights law (Exec. L. § 296 (15) & (16)) sets forth the following:

It is illegal for employers and licensing agencies to have a policy of not hiring any person with a criminal history and MUST consider each applicant individually.

It is illegal for employers and licensing agencies to deny any person with a criminal record a job or license because of his past conviction(s) UNLESSS:

-the conviction(s) are directly related to the job in question
-hiring or licensing that person would create an unreasonable risk to the safety of people or property.

Correction law § 753 lists factors that must be considered in determining whether a conviction meets the above criteria.

An applicant can demand a written statement from an employer or licensing agency detailing reasons for denial. The statement must be within 30 days (Correction Law § 754).

NYC Human rights Law (NYC Admin Code 8-107(10)) offers similar protection.

SUCH PROTECTIONS ONLY APPLY TO JOB APPLICANTS AND NOT EMPLOYEES

PRE-EMPLOYMENT INQUIRIES

Technology has provided unparalleled access to a vast array of criminal history data: hundreds of private, commercial background screening businesses access official data and create their own repositories. Several companies alone compile and manage criminal history databases with well in excess of 100 million criminal history records.

Well over 80% of large corporations and 70% of small business perform background checks on job applicants.

In New York state dozens of agencies maintain their own computerized records of arrests and prosecutions, including DJCS, OCA, NY State Police, and local law enforcement.

In 2002, for the first time, the FBI performed more finger print-based background checks for civil purposes (over 9 million) than for criminal investigations.

1. Employers and licensing agencies may ask whether the job applicant has been convicted of any crime. However, violations are not crimes
2. Employers may NOT ask about any arrests that did not result in a conviction (N.Y. Exec. L 296 (16)); CPL §160.60. Exceptions:

a) Government licensing agencies regulating guns, firearms, and other deadly weapons;
b) Applications for police officer or peace officer as defined in CPL §1.20(33), (34).

YOUTHFUL OFFENDER ADJUDICATIONS

1. Are not convictions and do not disqualify a person for public employment or licensure.
2. Do not need to be disclosed to a prospective employer unless it specifically asks if client has ever been adjudicated a YO.

ENFORCEMENT

1. New York State Human rights law permits a private right of action for someone denied employment because of an arrest that led to a favorable termination (dismissal, acquittal, etc.). Exec. L. 296(16); 297
2. Protections for those who have a criminal conviction are much more limited. If the employer is a private employer, then the only recourse is to file a complaint with the State Division of Human rights or City Commission on Human Rights. Corr. L. 755. The New York City Human Rights Law provides similar enforcement options. NYC Admin Code 8-107(10) & (11); 8-502(d).

Despite protections afforded to those who have been previously arrested or convicted of a crime, it is common practice for prospective employers to hire people who do not have a record. Thus, for some individuals, gainful employment is extremely difficult or nearly impossible to obtain.

Bruce Richardson