Modica Law Firm | Criminal Arrests and Convictions

THE IMPACT OF AN INDIVIDUAL’S CRIMINAL HISTORY ON PRIVATE SECTOR EMPLOYMENT IN NEW YORK

I. Employment-at-Will in New York

Most private sector employees are employed “at-will.” This means that an employer can refuse to hire them or can fire them for any reason. Other employees are part of a labor union or are employed pursuant to a contract; those individuals typically have more rights and protections than at-will employees.

Although an employer has considerable discretion to make employment decisions in at-will relationships, the law prevents them from taking adverse action against employees or applicants based on their membership in a protected class.

The law recognizes numerous protected classes, including, but not limited to, race, religion, sex, national origin, age, and disability. Under some circumstances, those who have been arrested and/or were convicted of a crime also have legal protections.

II. PROTECTION FOR INDIVIDUALS WHO HAVE BEEN ARRESTED

The New York Human Rights Law [“HRL”] prohibits an employer from asking an individual about their arrest record if such arrest is not then pending against them and was terminated in their favor (HRL § 296 (16)).

An arrest was terminated in an individual’s favor if it was:

Terminated under New York Criminal Procedure Law [“CPL”] § 160.50;
Resolved by an order adjourning the criminal action in contemplation of dismissal;
Disposed of as a youthful offender adjudication (CPL § 720.35);
Resulted in a conviction for a violation sealed under CPL § 160.55; or
Resulted in a conviction sealed under CPL §§ 160.57, 160.58, or 160.59.

An employer cannot force an applicant or employee to share information about an arrest that falls within the above criteria. If asked, the person may respond as if the arrest never occurred. Otherwise, individuals should respond truthfully to questions about criminal history from an employer or their agent. It is illegal for an employer to take adverse action against an employee or applicant because of such an arrest.

Two Important Notes About Arrests

If an arrest or criminal accusation is pending, the individual is not protected. Under that circumstance, an employer may refuse to hire an applicant or may terminate or discipline the employee. The employer can also question the applicant or employee about the pending arrest or accusation, the underlying circumstances, and the progress of the matter through the criminal justice system.
We recommend that employers not rely on Google or other unofficial records about arrests and their resolution.

III. PROTECTION FOR INDIVIDUALS CONVICTED OF A CRIME

Employees or applicants with a criminal conviction record have some protection from adverse employment action under two New York laws: the Clean Slate Act [“CSA”] (a new section of CPL § 160.57) and Article 23-A of the New York Corrections Law.

A. THE CLEAN SLATE ACT

The CSA adds a new section to CPL § 160.57 and amends the HRL, New York Correction Law, New York Judiciary Law, and New York Civil Rights Law. Under the CSA (effective November 16, 2024), certain New York criminal convictions are automatically sealed.

As a result, the CSA prohibits employers from considering or taking adverse action against an individual based on a sealed conviction.

What convictions may be sealed?

With some exceptions, automatic sealing occurs for New York felonies (classes B-E) after eight years and New York misdemeanors after three years [CPL § 160.57(1)(b)(i)-(ii)].

The sealing period begins: (1) when a period of incarceration is completed; or (2) on the sentencing date if there is no incarceration. Sometimes, the sealing of a criminal conviction may be postponed (e.g., if the individual has another criminal charge pending).
What convictions are excluded?

The CSA excludes out-of-state convictions, federal convictions, sex offenses, and New York Class A felonies (except for convictions related to drug possession and sale). It also does not seal the records of registered sex offenders [CPL § 160.57(1)(b)].
When will the conviction sealing process begin?

State agencies must seal eligible conviction records by November 16, 2027. Until then, employers should avoid making determinations that would be illegal under the CSA.
Does the CSA provide a private cause of action?

The CSA does not create a private right to sue; however, employers who obtain sealed records can be liable for damages if they disclose information about a sealed conviction without the individual’s consent, and the improper disclosure harms the individual [N.Y. Civ. Rights Law § 50-g].

Employers are also liable for damages if they ask about an arrest that resulted in a conviction that should have been sealed under the CSA [see HRL § 296(16)].

B. ARTICLE 23-A OF THE NEW YORK CORRECTION LAW

Article 23-A makes it illegal for employers to refuse to hire an applicant or to take adverse action against an employee with a criminal conviction record unless (1) there is a direct relationship between the employment and the conviction; or (2) hiring for or continuing employment would pose an unreasonable risk to property, specific individuals, or the public.

Private sector employers must comply with Article 23-A if they employ 10 or more people.

The law requires employers who know of a criminal conviction to consider and apply the following factors when making employment decisions:

New York’s public policy to encourage the employment of those with a previously criminal conviction;
The duties and responsibilities of the employment position at issue;
The bearing, if any, the criminal offense will have on the person’s fitness or ability to perform those duties and responsibilities;
How much time has passed since the criminal offense;
The person’s age when the criminal offense occurred;
The seriousness of the offense;
Information about the person’s subsequent rehabilitation and good conduct; and

IV. NOTICE REQUIREMENTS

Employers who receive criminal history information about an individual must give the individual a copy of that information and a copy of Article 23-A. Employers must also inform the individual of their right to seek correction of inaccurate information in the criminal history information.

This requirement may be familiar to some employers. Employers who conduct background checks using a consumer reporting agency must give individuals a copy of their report and an opportunity to dispute the reported information if the employer wants to take adverse action based on that information. New York General Business Law also previously required employers who learned of a criminal conviction this way to give the person a copy of Article 23-A.

The CSA now requires employers to give the individual a copy of the criminal history information and Article 23-A regardless of whether that information came from a consumer reporting agency AND regardless of whether the employer is contemplating adverse action based on that information.

V. CRIMINAL ARRESTS & CONVICTIONS: ENFORCING THE HRL

An individual seeking to enforce their rights under the HRL can (1) file a lawsuit in New York Supreme Court (within three years of the date of the event they wish to challenge); or (2) submit a complaint to the New York State Division of Human Rights [“DHR”].

We typically recommend that complainants proceed before the DHR instead of in state court. The DHR has a user-friendly website where individuals can submit a complaint electronically or print a complaint form for handwritten completion and mailing. There is no fee to file with the DHR and the complainant need not hire a lawyer.

The deadline to file with the DHR depends on when the alleged discrimination occurred. Individuals have one year from the most recent act of discrimination to file based on events that occurred before February 15, 2024. For acts that occurred on or after February 15, 2024, individuals have three years to file from the most recent act of discrimination.

VI. CRIMINAL ARRESTS & CONVICTIONS: REMEDIES FOR A VIOLATION

A complainant who wins their claim of unlawful discrimination based on a protected arrest or conviction may recover:

past lost wages and employee benefits (from the date of the violation to the date the claim is decided);
equitable relief (like job reinstatement) or future lost wages and employee benefits lost;
compensatory damages (including for emotional distress);
punitive damages (to punish an employer for “evil or outrageous” behavior); and/or
legal fees incurred.

VII. TIPS FOR APPLICANTS, EMPLOYEES, & EMPLOYERS

Applicants and employees should respond truthfully to questions about their criminal history. Consider how you believe the employer should apply the Article 23-A factors. Collect and submit evidence that will help the employer understand that, despite your criminal history, you are worthy of getting or keeping the job. Contact your criminal defense lawyer to discuss whether you may be eligible for a certificate of relief from disabilities.

Employers should heed the advice of the Doe Fund, a nonprofit organization that provides career training and other services to previously incarcerated individuals. In 2014, it published a helpful guide entitled “ Understanding Article 23-A: How to evaluate qualified job seekers with conviction histories.”

The Guide encourages employers to:

INTERVIEW THE APPLICANT with questions about the circumstances of the offense, what the applicant has accomplished since, and the lessons the applicant learned.

CONSIDER CAREFULLY AND THOROUGHLY THE ARTICLE 23-A FACTORS and decide whether those factors support employment based on the applicant’s specific circumstances.

MAKE AN INFORMED DECISION and avoid generalizations—employers should make hiring decisions based on careful consideration of each applicant’s circumstances.

The Guide also explains how employers should consider each Article 23-A factor by counseling employers as follows:

After recording facts related to all the eight factors set forth in Article 23-A, the employer’s next step is to give them careful consideration. Some of the factors will weigh towards hiring the candidate while others may not. Though all factors must be considered, ultimately, the facts and circumstances of a particular case will dictate the weight to be afforded each fact—which means that not all of the factors will be of equal weight. Therefore, individualized consideration should be given to each candidate, which is a crucial step in the hiring process. In doing so, the results can give the employer a true scope of the candidate’s ability to meet job expectations, while ensuring the candidate’s rights are not violated and that company anti-discrimination policy is being honored.

VIII. CONCLUSION

The law protects individuals from being treated differently in the workforce based on their membership in a protected class. Under some circumstances, this includes protection for those with arrest and/or criminal conviction records.

Given the complexity of this issue, we urge applicants, employees, and employers to act carefully when considering how an individual’s criminal history may impact an employment opportunity or continued employment.

Please contact our firm for assistance navigating this or other employment related legal matters.