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Employers

The New York State Human Rights Law provides protection (a) to persons with prior arrest records that were favorably resolved or resulted in sealed convictions or youthful offender adjudications, and (b) to persons with prior criminal conviction records. The employer’s obligations with respect to these protections are in separate sections of the Human Rights Law and impose different requirements.  The information below outlines the sections of the Human Rights Law that provides these protections. Employers are advised to consult with their own attorneys with respect to the specific application of the law.

Prior Arrest Records, Youthful Offender Adjudications and Sealed Records

It is an unlawful discriminatory practice for an employer to make any inquiry about any arrest or criminal accusation of an individual which is not currently pending against that individual, or which has been resolved in favor of that individual, resolved by a youthful offender adjudication, or resulted in a sealed conviction. These restrictions also apply to the provision of licenses, credit or insurance.  It is unlawful to require any individual to divulge information pertaining to any such arrest or criminal accusation or to take any adverse action based on such an arrest or criminal accusation.

Statutory Provision

This protection is provided by Human Rights Law §296(16).

What is Unlawful

It is unlawful to ask an applicant or employee whether he or she has ever been arrested or had a criminal accusation filed against him or her. It is also unlawful to inquire about youthful offender adjudications or sealed records. It is not unlawful to ask if a person has any currently pending arrests or accusations. It is also not unlawful to inquire about convictions. See the Previous Conviction section below.

It is unlawful to require an individual to divulge information about the circumstances of an arrest or accusation no longer pending. In other words, the employer cannot demand information from the individual accused in order to “investigate” the circumstances behind an arrest.

Pending Arrest or Accusation

As long as an arrest or criminal accusation remains pending, the individual is not protected under the Human Rights Law. The employer may refuse to hire or may terminate or discipline the employee in accordance with applicable law or collective bargaining agreement provisions. The employer may also question the employee about the pending arrest or accusation, the underlying circumstances, the progress of the matter through the criminal justice system, and the final disposition.

However, if the employee is arrested while employed, is not terminated by the employer, and the arrest is subsequently terminated in favor of the employee, results in a youthful offender adjudication or results in a sealed conviction, the employee then becomes protected. After such a termination of the arrest, the employer cannot initiate an adverse action against the employee based on the arrest and cannot question the employee about the matter. The employer can require that the employee provide proof of the disposition in a timely manner.

Specific Circumstances That are Protected

The arrest or criminal accusation must have been:

  • dismissed, pursuant to Criminal Procedure Law, CPL 160.50
  • disposed of as a youthful offender adjudication, pursuant to CPL 720.35
  • resulted in a conviction for a violation, which was sealed pursuant to CPL 160.55
  • resulted in a conviction, which was conditionally sealed pursuant to CPL 160.58

Sealed Records

Whether or not a record is sealed is a factual question. The sealing provisions of CPL 160.50 have been applied automatically to RAP (Record of Arrest and Prosecution) sheets since November 1, 1991. If a case is sealed and the court indicates such in its disposition reporting system, that particular criminal history is automatically sealed by the Division of Criminal Justice Services (DCJS). Prior to this time, a judge had to specifically order that the record be sealed. If an individual has a case that was terminated in his or her favor prior to November 1, 1991, it may still appear on his or her criminal history. Pursuant to CPL 160.50(4) the individual may ask the Court for an order to have the record sealed. The applicant or employee is responsible to know the status of a sealable conviction. If it is not in fact sealed, then it is a conviction record that can be required to be disclosed.

Exceptions to Human Rights Law §296(16)

The Human Rights Law explicitly states that arrest inquiries, requests for information, or adverse actions may be lawful where such actions are “specifically required or permitted by statute.” The Human Rights Law provides that the above protections do not apply to applications for a pistol license or in relation to an application for employment as a police or peace officer. For police or peace officer employment, arrests or criminal accusations that are sealed pursuant to CPL 160.50, CPL 160.55, or conditionally sealed pursuant to CPL 160.58 or deemed confidential pursuant to CPL 720.35 may be subject to inquiry, demands for information, or be the basis of adverse action. The Human Rights Law further provides that youthful offender adjudications or criminal actions sealed pursuant to CPL 160.50 or conditionally sealed pursuant to CPL 160.58 may be inquired into and taken into consideration in applications for employment or membership in any law enforcement agency. However, criminal actions sealed pursuant to CPL 160.50 (actions resolved in favor of the accused) may not be subject to inquiry, demands for information, or be the basis of adverse action during the application process for employment in any law enforcement agency.

Previous Conviction Record

It is unlawful to deny any license or employment, to refuse to hire, or terminate, or take an adverse employment action against an applicant or employee, by reason of his or her having been convicted of one or more criminal offenses, if such refusal or denial is in violation of the provisions of Article 23-A of the New York State Correction Law. The Correction Law provides the standards to be applied and factors to be considered before an employment decision may be based on a previous conviction, including the factor that it is the public policy of the State of New York to encourage the licensure and employment of those with previous criminal convictions.

Statutory Protections

This protection is provided by Human Rights Law §296(15), in conjunction with Article 23-A of the Correction Law.

Factors from the Correction Law

The Correction Law provides that an employer may not refuse to hire, may not terminate an employee, and may not take an adverse employment action against an individual because that individual has been previously convicted of one or more criminal offenses, or because of a belief that a conviction record indicates a lack of "good moral character," unless there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held, or employment of the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In order to determine whether there is either a direct relationship or unreasonable risk, the employer must consider the following factors set forth in the Correction Law:

  • The public policy of this State, as expressed in the Correction Law, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses
  • The specific duties and responsibilities necessarily related to the license or employment sought or held by the person
  • 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
  • The time which has elapsed since the occurrence of the criminal offense or offenses
  • The age of the person at the time of occurrence of the criminal offense or offenses
  • The seriousness of the offense or offenses
  • Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct
  • The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public

In making the determination, the employer must give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the individual, which creates a presumption of rehabilitation in regard to any offense specified in the certificate.

The factors must be applied on a case-by-case basis and each of the factors must be considered. If any additional documentation is needed, it must be requested of the applicant or employee before any adverse determination is made. A justification memorandum that merely tracks the statute but without rational application of the factors to the facts of the case may lead to a finding that the analysis was not bona fide or made in good faith.

It is not unlawful to discriminate if, upon properly weighing all the factors set out above, a reasonable, good faith decision is made that the previous criminal offense bears a direct relationship to the job duties, or if employment of the individual would involve an unreasonable risk to safety or welfare.

Convictions Must Be Previous

Individuals are protected for previous convictions. A conviction that occurs during employment does not entitle the individual to these protections. However, a current employee may not have adverse action taken against him or her based on a conviction occurring before the employment began, unless the employer follows the requirements of the Human Rights Law and the Correction Law, as outlined above.

Inquiries and Misrepresentation

Unlike many other areas covered by the Human Rights Law, an employer is not prevented from asking an individual to disclose prior convictions as part of the employment application process or at any time during employment.

If the employer learns at any time that an applicant or employee has made a misrepresentation with regard to any previous conviction, it may be grounds for denial or termination of employment. (N.Y. Correction Law §751)

Sealing and Correcting Criminal Records

According to CPL 160.50, CPL 160.55, CPL 160.58, and CPL 720.35, criminal records can only be sealed under very specific circumstances and to varying degrees.

CPL 160.50 – An individual is eligible to have their records sealed if the following circumstances occur: they have been acquitted, pardoned, or the conviction has been otherwise reversed or vacated. According to CPL 160.50, once a case is sealed, all official records and papers relating to the arrest and prosecution on file with the court, DCJS, police agency or prosecutor’s office will be sealed from public view. There are certain statutory exceptions which permit sealed information to be released, such as when an individual is applying for a pistol permit.

CPL 160.55 – Sealing under this law can occur if a criminal charge is reduced from a misdemeanor or felony to a violation or infraction. This law is not as comprehensive or expansive as CPL 160.50. In this instance, all official records and papers relating to the arrest and prosecution on file with DCJS, police agency or prosecutor’s office will be sealed from public view. Court records are not sealed pursuant to CPL 160.55.

CPL 160.58 – Authorizes an application to the sentencing court for the conditional sealing of official records and papers relating to the arrest, prosecution, or conviction of felony controlled substance offenses, marijuana offenses, or certain statutory specified offenses and up to three prior misdemeanor drug (CPL 220) cases on file with DCJS and the court. This conditional sealing is available where the offender has successfully completed a judicially-sanctioned drug treatment program. Unlike the records sealed pursuant to CPL 160.50 and CPL 160.55, records maintained by police and prosecutors concerning the arrest, prosecution and conviction are not subject to conditional sealing pursuant to CPL 160.58.

CPL 720.35 – If an eligible youth is afforded a Youthful Offender adjudication, it is not a conviction for a crime, and all official records on file with the court, DCJS, and the police agency are confidential and may not be made available to any person or public or private agency unless authorized by statute or the court.

The Purpose and Effect of Sealing Arrest Records

CPL 160.60 indicates that the sealing provisions of the CPL are intended to restore individuals who have had criminal actions against them terminated in their favor to the status they occupied before the arrest or prosecution. The arrest, prosecution, or conviction shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, or profession.

Human Rights Law §296(16) provides that it is an unlawful discriminatory practice to ask about a conviction that was sealed pursuant to CPL 160.50 or CPL 160.55 or conditionally sealed pursuant to CPL 160.58, and further provides that no person shall be required to divulge information pertaining to a sealed arrest except for law enforcement employment.

Enforcement by the Division of Human Rights

The New York State Division of Human Rights only adjudicates complaints of previous conviction record discrimination against private employers. All complaints are required to be filed with within one year of the alleged unlawful act. Complaints of discrimination by public employers or licensing agencies are initiated in state court.

The Division investigates complaints and determines whether there is probable cause to believe that unlawful discrimination has occurred. Where probable cause is found, the complaint will be forwarded to an administrative law judge to conduct a public hearing. Upon completion of the hearing, the administrative law judge will make a recommendation to the Commissioner of Human Rights. The Commissioner will issue a Final Order in the matter and, if discrimination is found, may order appropriate damages and other relief.

Tips and Best Practices for Employers

  • You may wish to wait until a conditional job offer is made before asking questions about the applicant’s criminal record or conducting a criminal background check. This allows the applicant to be considered on his or her qualifications first. If the background check discloses a conviction, the factors found in Correction Law § 753 can then be more easily applied in an unbiased manner, as required by law.
  • Any question about arrest records may only pertain to pending arrests. You may also ask about a job applicant’s conviction history, except those convictions that were sealed, resulted in a youthful offender adjudication, or were dismissed. For example, you may ask :
    • Have you been convicted of a felony or misdemeanor?
      • The answer is NO if:
        • The conviction was sealed by the court,
        • The proceeding on the criminal offense resulted in a youthful offender adjudication, or
        • The conviction was reversed on appeal and the charge was dismissed
  • All types of criminal records and background checks may contain errors. When you are considering denying employment based on a background check, you should, at a minimum: 1) provide the applicant with a copy of the background check received and, 2) give the applicant an opportunity to identify and correct errors or otherwise explain what is listed on the background check. A discrepancy between what an applicant says and what the background check discloses does not always mean the applicant is lying. You may be found to have violated the law if you rely on a background check that turns out to be inaccurate, unless you have provided an opportunity to the individual to correct the error. You may require that the applicant provide documentation in order to clarify errors. You must make an individualized decision in accordance with the Correction Law § 753 factors; you may not rely on a background check company service that issues recommendations about hiring the applicant.
  • Some background check companies offer a service in which the background check includes a “hire/do not hire” recommendation, or red (“do not hire”), yellow (“caution”), or green (“OK to hire”) flags. These recommendations are based solely on the criminal record revealed in the background check. Following such recommendations would not satisfy the requirement that all factors set out in the Correction Law be considered and properly weighed by the employer.
  • Whenever you deny employment because of a conviction record, you are required by Correction Law § 754, upon the request of the applicant, to provide a statement setting forth the reasons for the denial. Such statement must be in writing, and provided within 30 days of the request.

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