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 (defined as an entity who employs 10 or more people) 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 online 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.

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