Criminal Background Discrimination

You have a criminal conviction in your background. You paid your debt to society under the criminal law, and you want to start your life anew. You wouldn’t be alone – about 70 million people in the United States have a criminal history of some sort. And you need to get a job to support yourself and your family. 

In New York City, there is now a strong law to give you a fair chance to start over again. The Fair Chance Act went into effect on October 27, 2015. The law “bans the box” – the box on the employment application that you used to have to check if you had a criminal record. 

Here’s how the law works.

When you initially apply for the job, you cannot be asked if you have a criminal history, and you don’t have to and should not offer to volunteer that information. Questions about your criminal history can be asked later, but not up front. In the first stages of the application, the employer must focus on your qualifications for the job.

After an employer reviews your qualifications and decides you are a good fit, the employer will then make a conditional offer of employment, conditional upon a review of your criminal background. 

After the conditional offer of employment, the employer can now ask you about your criminal conviction history or a pending criminal case, or run a background check. The employer can ask you about circumstances surrounding a conviction. 

Keep in mind that some criminal record information is off-limits, and you cannot be asked about it. Say you have a conviction for a felony or a misdemeanor and you are asked about it. If the conviction was sealed, expunged or reversed, or was a youthful offender or juvenile delinquency matter, or you were permitted to withdraw a plea of guilty through a court program, then these “convictions” are considered “non-convictions.” Also, keep in mind that a violation, infraction, or petty offense-- that is, a criminal matter below a felony (a crime where there is a potential for a more than one year incarceration), or below a misdemeanor (a crime where there is potential for 15 days to one year incarceration), is not to be considered part your criminal history.

If, after reviewing your criminal background, the employer wants to withdraw the conditional offer of employment, it must give you a written copy of its investigation and analysis of why your criminal history disqualifies you for the job, with at least three days for you to respond. This will allow you to clarify your record, if there are any mistakes, or to make the case why you should get the job.

The written copy of its investigation that the employer has to give must analyze your criminal history and its relevance, or irrelevance, to the job in question. 

The employer will have to show that it analyzed various factors;
Is there a direct connection between the criminal conduct and fitness to perform the job duties?
How much time has gone by since the criminal conduct?
How old were you at the time?
How serious is the criminal history?
What information did you give that show that you have been rehabilitated?
Is there a legitimate reason not to hire you in order to protect other people or property?

Each case is unique. 

For Example:

In one case, a school denied employment to a woman because she had been convicted, 10 years ago when she was 17, of first degree robbery, serving 3 years in prison. After getting out of prison, she got a college degree and had a steady job history. The court said the school should have hired her.

On the other hand: the court said a school could deny employment to a school bus driver with multiple convictions, some involving controlled substances, despite the fact that after the convictions he had had a 15 year good job history as a school bus driver at another school.

With the Fair Chance Act, you now have a better chance of getting a job when you have a criminal history. 

In our more than 25 years of experience, we have helped many employees subjected to discrimination based on their criminal history or criminal background, and we will be your lawyer for negotiations or a court suit in New York State Courts or New York City so that injustice is stopped.

Contact us online or call us at (212) 949-1001 for a free initial consultation today to see whether your New York City employer is discriminating against you based on your criminal history or criminal background. 

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