Resources on the Consequences Related to Employment
The following is an excerpt from "The Consquences of Criminal Proceedings"
1. Public Employers
i) Any City, Town, or Village employee.
ii) MTA or NYCTA
iii) Department of Education
b. Information Sharing:DCJS automatically notifies many public employers and licensing agencies about arrests of their employees or licensees. This notification occurs when a public employer has run a criminal records check on your client in the past.
i) Practice Tip: Look carefully at the rap sheet. As a general rule, if the client's rap sheet notes that a public employer or licensing agency has run a check, then that entity will be notified of subsequent arrests.
c. Immediate Suspension
i) Often, therefore, an arrest leads to immediate suspension.
ii) Hearing: Usually, the employee can request a hearing on the suspension, but to be successful your client must waive her 5th Amendment rights at the hearing and testify about the alleged criminal activity.
(1) You must make a strategic decision about how to proceed, depending on the potential impact on the criminal case.
(2) Practice Tip: You may be able to obtain discovery through administrative subpoenas or if the police officers or complaining witness testify.
(3) Warning: Clients will often try to have their suspension lifted by sending written explanations of the alleged criminal incident to the licensing agency.
d. Broad Discretion by Employer: most public employers are entitled to terminate or suspend based on any "immoral conduct," and this gives them immense discretion.
i) A favorable termination in the criminal proceeding will often lead to reinstatement. However, because the employer only has to satisfy an administrative burden of proof, the employer can terminate based only on hearsay (e.g., a criminal complaint).
ii) Some agencies are better than others - find out the character of the agency (the Union rep or legal department is often your best source of information).
iii) The apparent relevance of the conviction to the position will be important for informal advocacy in this area.
(1) However, Correction Law Article 23-A and NYS Human Rights Law protections apply only to hiring, not firing (see below).
e. Practice Tip 1:ALWAYS contact your client's union legal department to determine the effect of future pleas in the case. Get them involved as soon as possible! Some public employers, such as the New York City Housing Authority, will attempt to terminate based on ACD's.
f. Practice Tip 2: Find out if your client has a duty to report new arrests to his public employer. An employer will often find out through routine reporting from the Police Department or DCJS, but the failure to report can be an independent cause for termination.
2. Licensing Regimes (over 100 in NYS)
i) Security Guard Registration (through NYS Department of State)
ii) NYC Department of Education (including custodial staff)
iii) Taxi & Limousine Commission
iv) Real Estate Broker's license
b. All of the points about public employers also apply to licensing agencies.
c. The Legal Action Center has an excellent compilation of the licensing regimes and their bars to eligibility. The "Occupational Licensing Survey" is available on Reentry Net/NY (www.reentry.net/ny).
3. Public Offices
a. Examples: police officer; firefighter; court officer; law enforcement jobs; notary public; some elective offices.
b. Should ask the employer or licensing agency whether it's a public office and whether there's a bar for felony or misdemeanor convictions.
i) If so, the only way to lift the bar is a Certificate of Good Conduct.
4. Employment Discrimination - Rights & Protections
a. Post Arrest or Conviction
i) Disparate Impact on the Basis of Race (Federal law)
(1) Under Title VII of the Civil Rights Act of 1964, the EEOC has determined that an employer's policy or practice of excluding individuals from employment on the basis of their conviction records, absent business necessity, has an adverse impact on African-Americans and Latinos in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.
(2) An employer can show business necessity when the applicant is engaged in conduct that is particularly egregious or related to the position in question.
(3) This cause of action is often called the Griggs theory of the disparate racial impact of any policy under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(k).
ii) Federal and State Fair Credit Reporting Acts (FCRA)(Employment & Housing)
(1) Most private employers and landlords receive criminal history information from a variety of consumer reporting agencies (CRAs), rather than official sources. A number of national studies have shown that reports from these CRAs are notoriously incorrect or incomplete. FCRA establishes standards of accuracy and procedural rights if a report is the basis for adverse decisions. See 15 U.S.C. § 1681 et seq.
(2) NY FCRA prohibits reporting non-criminal convictions, such as violations. See Gen. Bus. L. § 380 et seq.
(3) These protections can be used to promote fairness in both employment and housing decisions.
iii) Arrests without convictions(Favorable Dispositions)
(1) NYS Human Rights Law (Exec. L. § 296(16)) prohibits public and private employers and occupational licensing agencies from denying any individual a job or license (or otherwise discriminating against that person) because of any arrest that did NOT result in a conviction. (These arrests should be sealed under CPL § 160.50 and viewed as a legal nullity under CPL § 160.60.)
(3) NYC Human Rights Law (NYC Admin. Code § 8-107(11)) offers similar protection.
(1) Provisions: Corr. L. §§ 750-755 (Art. 23-A) and NYS Human Rights Law (Exec. L. § 296(15) & (16)).
(2) Youthful Offender Adjudications, Violations Convictions, and Conditionally-Sealed Convictions: Effective November 1, 2007, an amendment to the Human Rights Law prohibits private and public employers and licensing agencies from asking job-seekers about Youth Offender adjudications and sealed violations (petty offense convictions). The bill specifically states that employers and licensing agencies cannot "make any inquiry about, whether in any form of application of otherwise, or to act upon adversely to the individual involved" any Youthful Offender adjudication or sealed violation. (2007 N.Y. Laws 639). In 2009, these protections extended to convictions that have been conditionally sealed under CPL §160.58.
(a) This provision does not apply to an application for employment or membership in any law enforcement agency.
(3) Illegal for employers and licensing agencies to have a policy of not hiring any person with a criminal history - they must consider each applicant individually.
(4) Illegal for employers and licensing agencies to deny any person with a criminal record a job or license because of his past conviction(s) UNLESS:
(a) The conviction(s) are "directly related" to the job in question, or
(b) Hiring or licensing that person would create an "unreasonable risk" to the safety of people or property.
(c) Corr. L. § 753 lists factors that must be considered in determining whether a conviction meets the above criteria.
(5) Applicant can demand a written statement from employer or licensing agency detailing reasons for denial. The statement must be sent within 30 days. (Corr. L. § 754.)
(6) NYC Human Rights Law (NYC Admin. Code § 8-107(10)) offers similar protection.
v) Warning:these protections generally only apply to job applicants, not current employees. Current employees or license-holders are protected from termination only if the conviction preceded their employment or granting of a license and they did not misrepresent their criminal history at application. 2007 N.Y. Laws 284.
vi) Pre-Employment Inquiries
(1) Employers and licensing agencies may ask whether the job applicant has been convicted of any crime.
(a) Practice Tip: Remember that violations are NOT "convictions of crimes." (N.Y. Pen. L. § 10.00(3) & (6).)
(2) Employers may NOT ask about any arrests that did not result in a conviction. (N.Y. Exec. L. § 296(16); CPL § 160.60.)
(i) Government licensing agencies regulating guns, firearms, and other deadly weapons;
(ii) Applications for police officer or peace officer as defined in CPL § 1.20(33) & (34).
(b) Practice Tip: A job application in New York State that asks about arrests is illegal, and under CPL §§ 160.50 & 160.60 client can legally answer "no" about any arrest that lead to a "favorable termination" as defined in CPL § 160.50.
(1) The HRL permits a private right of action for someone denied employment because of an arrest that led to a favorable termination (dismissal, acquittal, etc.). Exec. L. §§ 296(16); 297.
(2) However, Corrections Law Art. 23A, which protects those who have criminal convictions, is much more limited. If the employer is a public employer, then an applicant can challenge the action only in an Article 78 proceeeding. If the employer is a private employer, then the only recourse is to file a complaint with the State Division of Human Rights or City Commission on Human Rights. Corr. L. § 755. The New York City Human Rights Law provides similar enforcement options. NYC Admin Code §§ 8-107(10) & (11); 8-502(d).
b. Alcohol or Drug Dependence
i) Federal law - Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.
(1) Prohibit discrimination by public or private employers (with 15 or more employees) against persons with a past or current disability (or those who are perceived to have a disability) who are otherwise qualified to perform the job they seek or hold. Also require reasonable accommodation to this disability.
(2) **Do NOT protect those who "currently engage in the illegal use of drugs."
(a) However, those in treatment, including methadone treatment, are covered.
ii) State law- NYS Human Rights Law, Exec. L. §§ 290 et seq.
(1) Reaches more employers (four or more employees) and protects a broader range of people than federal laws.
(2) Definition of disability is broader.
(3) NYS Division of Human Rights has recognized alcoholism, a history of drug abuse, and participation in a methadone maintenance program as disabilities.
(4) **Protects those currently using illegal drugs IF they can safely perform their job duties.
iii) NYC Human Rights Law, NYC Admin. Code §§ 8-102 & 8-107: similar to federal protections.
c. Actual Employment Practices
i) Despite the protections afforded by the law, there is a demonstrated preference for hiring people without a record.
ii) In a research study conducted by Professor Devah Pager, the focus was on the effect of a criminal record on employment opportunities and the comparison of that effect between African-Americans and whites. The study made the following findings:
(1) 34% of whites without criminal records received callbacks, relative to only 17% of whites with criminal records. This demonstrated that a criminal record reduced the likelihood of a callback by 50%.
(2) Among African-Americans without criminal records, only 14% received callbacks, relative to 34% of white non-criminals (which was also less than whites with criminal records - 17%) and only 5% of African-Americans with criminal records received callbacks.
 Devah Pager, The Mark of a Criminal Record, 108 American Journal of Sociology 5, 937-75 (March 2003).