Can a New York Employer Refuse to Hire Me if I Have a Criminal Record?

New York is one of only a few states that prohibit employment discrimination based on a person's criminal record. Specifically, section 296 of New York State Human Rights Law makes it unlawful to deny employment to people solely because they have been “convicted of one or more criminal offenses,” nor can an employer rely on a criminal conviction as evidence that a job applicant lacks “good moral character.”

To be clear, New York law does not prevent employers from taking a criminal record into account when making hiring decisions. But the employer must also consider eight additional factors when weighing the relevance of a criminal record, including the seriousness of the offense, the applicant's age when he or she committed the crime, and whether the conviction has any bearing on the ability to perform the job sought. If, after considering all of these factors, the employer still decides not to hire an applicant, the employer must provide a written explanation of its decision to the applicant upon request.

Court of Appeals Holds Third-Party Contractors May be Liable for Discrimination

What New York law expressly forbids is a blanket policy of refusing to hire anyone with a criminal record. What about a scenario in which a subcontractor is obligated by the contractor not to hire people with a criminal record? New York State's highest court recently considered the extent to which the contractor may be liable for illegal employment discrimination.

The facts of this case are fairly straightforward: The plaintiffs worked for a New York-based moving company, which we will refer to here as Company C. Sometime later, Company B hired Company C as a subcontractor. Company B is a subsidiary of Company A. Company A and Company B are located outside of New York.

Company C's contract required it to comply with the hiring guidelines of Company B. Among other things, this included not employing anyone who could not pass a criminal background check. Since the plaintiffs had criminal records, Company C fired them.

The plaintiffs sued all three companies in federal court. The judge dismissed Company A and Company B as plaintiffs, holding that New York law only applied to the direct employer, which in this case was Company C. The plaintiffs appealed that ruling to the U.S. Second Circuit Court of Appeal, which in turn asked the New York Court of Appeals to clarify who can be sued under the Human Rights Law.

In a May 4 decision, the Court of Appeals agreed with the trial judge that liability for discrimination was limited to the “employer.” But that did not necessarily mean only the direct employer. Company A and Company B may be classified as employers for purposes of anti-discrimination law based on four factors, which the trial court will have to consider in the future:

  • Does the company control the “selection and engagement” of the employee?
  • Does the company control “the payment of salary and wages” to the employee?
  • Does the company have “the power of dismissal” over the employee?
  • Does the company have “the power of control” over the employee's conduct?

Finally, even if Company A and Company B are not ultimately determined to be employers, the Court of Appeals found they may be separately liable for “aiding and abetting” illegal employment discrimination by Company C.

Are You the Victim of Illegal Employment Discrimination?

The Court of Appeals' decision is welcome news for people who have been unfairly and illegally denied a job because of their prior criminal history. If you have been the victim of any kind of illegal discrimination, it is important to speak with a qualified New York employment attorney who can help you determine your options. Contact the Law Offices of Mahir S. Nisar to speak with an attorney today.

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