Modica Law Firm

Helping People Take Action

  • Email
  • Facebook
  • Linkedin
  • Twitter
  • Home
  • Why Us ?
    • Community Involvement
    • Recent Recognition
  • Our Team
    • Steven V. Modica, Esq.
      Principal
    • Lorrie Walsh Modica, Esq.
      Of Counsel
    • Debby A. Amadio
      Legal Assistant
    • Gina T. Crawford, LCR
      Workers’ Comp Rep
    • Gregory E. Fassler, Esq.
      Associate Attorney
    • Courtney Rowan Gramza
      Paralegal
    • Joyce M. Guider
      Paralegal
    • Cynthia V. Sundlof
      Administrative Manager
    • Cynthia Witherspoon
      Paralegal
  • Do I Have a Case?
  • Advice Library
    • Workers’ Compensation
      • Workers’ Compensation’s New SLU Guidelines
      • Work-Related Hearing Loss
      • 2017 New York Workers’ Compensation Changes
      • Ten Things Every Injured Worker Should Know
      • Basic Facts and Practical Advice – Workers’ Comp
      • Helping Us Help You
      • What Medical Evidence is Needed?
      • Preparing for Your Defense Medical Examination
      • Do I have to Look for Work?
      • How Often Must I go to the Doctor?
      • M&T Reimbursement
      • What You Say, Write and Do
      • What do I get if I am Permanently Injured?
      • Loss of Wage Earning Capacity
      • Getting a SLU Award–7 Things You Need to Know
      • Getting a Permanency Award–7 Things You Need to Know
      • What if I Settle my Case for All Time?
    • Social Security Disability
      • Basic Facts and Practical Advice
      • Help Us Help You
      • Can I get Other Benefits While I Wait for SSD?
      • Other Social Security Benefits
      • How Do Work Disability Benefits Interact with SSD?
      • Can I work and Still Get SSD?
      • Applying by Telephone or in Person
      • Applying by Internet
      • Completing the ADL and Work History Reports
      • Substance Abuse in Social Security Disability Cases
      • Seeing the Social Security Doctor
      • Working with Us to Request Your Hearing
      • Am I Entitled to an Expedited Decision?
      • Updating Your Medical Records
      • Preparing for Your Hearing
      • The Judge Approved my Case–What is Next?
      • Surviving a Continuing Disability Review
      • Surviving an Alleged Overpayment
      • Notice About Changes to WC Offset Rule
    • Other Disability Benefits
      • NYS Retirement System Disability Pension Benefits
      • Advice for Attorneys
      • Off the Job Disabilities – Ten Things You Need to Know
      • Group Long Term Disability Benefit Appeals
    • Employment
      • Employing People in New York: What You Need to Know
      • EEOC Recommendations About How to Fight Unlawful Harassment
      • Persistent Age Discrimination and Bias
      • New York Paid Family Leave Law
      • Criminal Arrests and Convictions
      • New York Minimum Wage Increases—What You Need to Know
      • New York Minimum Salary Increases–What You Need to Know
      • Changes to Federal Wage & Hour Laws–What You Need to Know
      • Employee or Independent Contractor?
      • Exercising Care When Engaging Domestic Workers
      • Seven Changes for 2016 That You Need to Know
      • Severance Agreements
      • New York Law on Paid Time Off
      • Professionals as Employers
      • Internet & Social Media Issues for Employers
      • How Safety Managers Can Stay Out of Legal Trouble
      • How Managers & Supervisors Can Stay out of Legal Trouble
      • To Disclose or Not – Issues for Folks with Multiple Sclerosis
      • Disability Benefit & Employment Issues for People with Fibromyalgia
    • Personal Injury Litigation
      • Asbestos is Still a Problem
      • Recovering More than Workers’ Compensation
      • What About WC Once My Personal Injury Case is Done?
      • Should I Borrow Money from a Litigation Loan Company?
      • Preparing for Your Deposition
    • Other Advice
      • Protecting You from Social Media
      • Top Ten Facts for Police Union Leaders About . . .
      • A Message to Local Lawyers From Steve Modica
      • Primer for Lawyers on New York False Claims Act
      • Working with the Government to Fight Fraud
      • Workers’ Compensation in 2016: Upcoming Changes Health Care Providers Need to Know
  • News
  • Links & Associations
  • Contact Us
  • Workers’ Comp
  • Disability Benefits
  • Employment
  • Construction Accidents
  • Whistle Blowers
  • Mediation/Arbitration

Criminal Arrests and Convictions

December 27, 2016 by Steve Modica

Print Friendly, PDF & Email

Employment-at-Will in New York

Employees in New York are “at-will” unless they have an individual employment contract or are represented by a union.

There are exceptions to the employment-at-will rule.  The best known exceptions prohibit an employer from firing an employee on account of various protected classes which include their race, religion, sex, national origin, age, disability, marital status, military status, sexual orientation or domestic violence victim status.  There are other exceptions that protect employees (and applicants for employment) who were arrested and who were convicted of a criminal offense.

Protection for Employees and Applicants for Employment who have been Arrested

Section 296 (16) of the New York Executive (Human Rights) Law [“HRL”] prohibits an employer from making any inquiry about any arrest 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 (emphasis added).

An employee or applicant for employment cannot be compelled to divulge information pertaining to any such arrest.  Nor may the employer take any adverse action against the employee or applicant based on such an arrest.  The HRL can be enforced by a state agency known as the New York State Division of Human Rights [“DHR”].

An arrest is resolved in your favor if and ONLY if it was:

  1. Dismissed “in the interest of justice” under New York Criminal Procedure Law [“CPL”] 160.50;
  2. Disposed as a youthful offender adjudication under CPL 720.35;
  3. Resulted in a conviction for a violation, sealed under CPL 160.55; or
  4. Resulted in a conviction, which was conditionally sealed under CPL 160.58.

According to guidance found on the DHR website (http://www.dhr.ny.gov/prior-arrest-records):

As long as an arrest or criminal accusation remains pending, the individual is not   protected. The [employer] may refuse to hire or may terminate or discipline the employee in accordance with applicable law . . . .  The [employer] 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.

Protection for Employees or Applicants Convicted of a Criminal Offense

Employees or applicants for employment who have been convicted of one or more “criminal offenses” have some protection from adverse employment action under Article 23-A of the New York Corrections Law.  Stated simply, an employer may not automatically refuse to hire, discipline or fire an employee because he was convicted of one or more criminal offenses.

Rather, the employer is required to consider and apply the following eight factors under Section 753 (1) of the New York Corrections Law:

(1)        The public policy of this state . . . to encourage the employment of persons previously convicted of one or more criminal offenses.

(2)        The specific duties and responsibilities necessarily related to the employment held by the person.

(3)        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.

(4)       The time which has elapsed since the occurrence of the criminal offense or offenses.

(5)        The age of the person at the time of occurrence of the criminal offense or offenses.

(6)        The seriousness of the offense or offenses.

(7)        Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

(8)       The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.

How Employees or Applicants for Employment Can Protect Their Rights

To protect your rights, you must file a charge of discrimination with the DHR. The deadline to do so is 365 days from the date of the event that you want to challenge.  You do not need to hire a lawyer to file a charge of discrimination.  To contact the DHR, call (585) 238-8250.  You can visit the DHR on line at http://www.dhr.ny.gov/

One Final Note

Keep in mind that, unlike many other areas covered by the HRL, an employer may require an employee or applicant for employment to disclose prior criminal convictions.  If the employer learns at any time that that an employee or applicant has lied about any previous conviction, it may be grounds for termination of employment.  Thus, in our view, it is safer for employees and applicants to disclose than not to disclose.

Print Friendly, PDF & Email

Filed Under: advice-employment

“To love and to be loved is to feel the sun from both sides.”

— David Viscott

modicalawfirm300

2430 RIDGEWAY AVENUE, ROCHESTER, NY 14626

Phone: 585-368-1111 • Fax: 585-368-1100

ATTORNEY ADVERTISING • Copyright © 2018 — Modica & Associates, Attorneys, PLLC • All rights reserved.     DISCLAIMER    |    CLIENT'S RESPONSIBILITES    |     CLIENT'S RIGHTS