When can a Potential Employer Use Your Criminal Record Against You?

Although the criminal justice system is supposed to rehabilitate offenders and aid their reentry into society whenever possible, the reality is that many New York employers do not want to hire employees with a conviction on their record. This goes against the public policy of New York State, however, which encourages the “employment of persons previously convicted of one or more criminal offenses.” If an employer does conduct a criminal background check, it must, therefore, be careful not to engage in acts that are considered employment discrimination under the New York State Human Rights Law.

Restaurant Sued After Failing to Hire Waiter With Robbery Conviction

When it comes to considering a job applicant's prior criminal record, New York law requires employers to show there is either a “direct relationship” between the prior offense and the applicant's fitness for employment or that hiring the applicant would pose an “an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” In other words, an employer cannot impose a blanket prohibition against hiring anyone with a prior criminal record.

The law also sets forth eight factors that an employer must consider, including the seriousness of the prior offense, the applicant's age at the time of his or her conviction, and any information regarding the applicant's subsequent “rehabilitation and good conduct.” If an employer simply withdraws a job offer without going through these specific factors, it may be liable for employment discrimination.

Consider this recent lawsuit filed in Manhattan federal court against a national restaurant chain. The plaintiff in this case applied for a job as a waiter. According to his complaint, when the applicant was 21 years old, about eight years before he applied for the job with the defendant, he was arrested and charged with second-degree robbery. The plaintiff maintained he “did not participate in the crime,” but he entered a guilty plea and served a prison term. Since his release, the plaintiff said he has attended college and worked for other employers.

Nevertheless, the plaintiff said the defendant withdrew its conditional employment offer after a background check revealed his prior conviction. In this lawsuit, the plaintiff alleges the defendant “did not consider each of the eight factors” required by New York law. Indeed, the defendant never afforded the plaintiff an opportunity to explain the “nature and severity” of his prior offense. More to the point, the plaintiff said the defendant failed to show there was a “direct relationship” between his prior offense and the employment he sought, or that hiring him would create an unreasonable risk of harm to the defendant's property or the general public.

Get Help From a New York City Employment Attorney

Of course, a complaint is merely one party's statement of allegations. The case above remains pending before a federal judge. But it does illustrate the type of criminal background check discrimination claims we frequently see in New York. If you have been the victim of any kind of illegal discrimination during the hiring process and need to speak with an experienced New York employment attorney, contact the Law Offices of Mahir S. Nisar at 646.760.6493 today.