When you have a past criminal conviction on your record, you likely have fears that it will impact your employment opportunities, and rightfully so. A field experiment conducted by Yale students, reviewed “Ban-the-Box” (BTB) policies that limit an employer’s ability to ask applicants about criminal history. The goal is to limit disproportionate race discrimination against young African American applicants.
The study found that when employers were presented with applications of a variety of criminal and noncriminal backgrounds, there was a race gap for callbacks for companies who had enacted these BTB policies. Why? Because employers who did not have the information in front of them hired more white employees than people of color–a gap that grew from 7% to 45%.
Criminal conviction discrimination in employment is a two-fold discrimination practice. The first of course, being for a mistake an applicant made in the past; the second is the unconscious bias employers follow as a result of preconceived notions.
But what is being done to combat these practices and what rights do you have as an employee in New York State if you believe you were a victim of criminal conviction discrimination?
New York Regulations on Criminal Conviction Discrimination: Correction Law
Under the New York State Correction Law, it is unlawful for an employer 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.”
In addition, an employer may not discriminate against a current or potential employee because of the belief that a previous conviction indicates a lack of “good moral character,” unless there is a direct relationship between the crime committed and the position sought.
To determine if there is a direct relationship or unreasonable risk to the past record, the employer must consider the following factors:
- The specific duties and responsibilities related to the license or employment
- The bearing the criminal offense will have on his ability to perform one or more duties or responsibilities
- The time which has elapsed since the criminal offense(s)
- The age of the person at the time of the criminal offense(s)
- The seriousness of the offense(s)
- 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/private employer in protecting property, and the safety and welfare of specific individuals/the general public
While these considerations are on a case by case basis, it is important for potential employees to know that the employer does have a right to discriminate against the person’s employment if upon examining all factors, a reasonable, good faith decision is made that the previous criminal offense bears a direct relationship to the job duties, or if the employment of the individual would involve an unreasonable risk to safety or welfare of the company and those employed by it.
While previous criminal convictions that have no influence on the position you seek should not hold you back if you are convicted of a crime while employed, your employer can take action against you.
In addition, unlike other employment issues covered under the New York 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. Failure to disclose the truth can result in termination or denial of employment. However, if your record has been sealed, you do not have to say you have been convicted of a felony or misdemeanor.
If you are undergoing a criminal background check for employment or you worry your past record will inhibit your ability to find a better job, you need legal help.
Criminal Conviction Discrimination in New York Employment
Your past should stay in the past. But when a previous criminal conviction stops you from seeking employment, or causes you to be the victim of criminal conviction discrimination, know that you have options.
These discriminatory behaviors can also be racially motivated, making them even more complicated. So don’t handle it alone. Contact the criminal conviction discrimination lawyers of Brown Kwon & Lam now.