All business owners should understand their responsibility as employers, as well as the rights of people with criminal convictions with respect to hiring. This discussion focuses on the New York Human Rights Law, N.Y. Exec. §296(15) and (16), which applies across the state. Some municipalities, including, among others, New York City, Buffalo and Rochester, have separate requirements for businesses within their jurisdictions. Please consult information about these requirements if you hire in these municipalities. Under New York Human Rights Law:
Employers Cannot Ask About:
Arrests or criminal accusations that were resolved in an individual’s favor.
Arrests or criminal accusations resolved by a youthful offender adjudication.
Arrests or criminal accusations that resulted in a sealed conviction.
Employers Can Ask About:
An arrest or criminal accusation that is currently pending.
Arrests or criminal accusations that were not resolved in an individual’s favor.
But you cannot not refuse to hire 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 employment sought or held; or
Employing or continuing to employ the person 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