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Criminal Conviction Discrimination Lawyers

If you have been arrested or convicted of a crime in New York, you still have employment rights. You do not forfeit your employment rights simply because you have have a previous criminal conviction. At Famighetti & Weinick PLLC, our Long Island criminal conviction discrimination lawyers stand by your side. We are firm believers that people learn from their mistakes.

While federal law does not protect workers from employment discrimination because of a past criminal conviction or arrest, New York State and New York City law does.

Arrest Record

Employers are prohibited from asking an applicant or employee if he or she has ever been arrested in the past. However, employers are allowed to ask about any current pending arrests.

So, if an employer asks you to disclose information relating to a prior arrest that is no longer pending this is unlawful. No matter how much your employer tries to convince you that disclosing this information is necessary, it does not change the fact that it is illegal for employers to ask this question.

If you have been asked questions about an arrest while applying for a job, speak to a Long Island arrest record lawyer.

Importance of Sealed Criminal Records

Prior arrests are only protected if they have been sealed. It is important to understand the specific circumstances under which sealed arrest records are protected and how to determine whether or not a record is in fact sealed. Speaking with a Long Island criminal conviction lawyer can help determine if your arrest has been sealed.

Sealed arrest records are protected and employers are prohibited from asking applicants or employees any questions under the following circumstances:

TYPES OF SEALED ARREST RECORDS THAT ARE PROTECTED
Arrests dismissed pursuant to Criminal Procedure Law (CPL) 160.50Arrests resulting in a youthful offender adjudication pursuant to CPL 720.35
Arrests resulting in a conviction for a violation that was sealed pursuant to CPL 160.55Arrests that resulted in a conviction that was conditionally sealed pursuant to CPL 160.58.

Many times questions arise as to whether or not a record was properly sealed. For example, after an employer conducts a proper background investigation, an employee may learn that the employer found out about a prior arrest which the individual believed had been sealed.

Qualifying arrest records have been automatically sealed since 1991. However, cases that were resolved prior to November 1, 1991, were not always automatically sealed. As a result, prior arrests may still appear on your criminal history.

If this is the case, the individual can ask the court to seal the individual’s record. It is the employee’s duty to ensure that sealable convictions have in fact been sealed. Otherwise, employers may be permitted to use this information when making employment decisions.

Criminal Convictions

It is illegal to discriminate against job applicants or current employees because of the individual’s criminal conviction history. However, employers are still permitted to ask applicants and employees questions about the individual’s past criminal convictions. So, what is an employer not allowed to do?

An employer cannot refuse to hire you, terminate you, or take any other action against you that may hurt your status as a job applicant or employee simply because you have a previous criminal conviction. Rather, employers must follow certain procedures.

The law requires employers to apply certain factors before making any employment decision based on an individual’s past criminal history. These factors must be weighed in consideration of the fact that New York encourages employers to hire and retain individuals that may have criminal convictions.

What are the Factors?

According to Section 753 of the New York Correction Law Sectopm 753 lists the 8 factors employers must consider before making an employment decision. Among others things, employers must consider the age of the applicant at the time of the criminal offense, the seriousness of the offense, evidence of rehabilitation, and, perhaps most importantly, the relationship between the offense and the applicant's ability to perform the job.

After carefully considering these factors, an employer may then decide to make a negative employment decision, such as refuse to hire or termination if: (1) a direct relationship exists between any of the individual’s prior convictions and the specific job in question, or (2) hiring or allowing the individual to remain employed may cause an unreasonable risk to property or to the safety or welfare of certain individuals or the public.

If an employer ultimately decides not to hire, New York Correction Law Section 754 allows the applicant to request a statement regarding the reasons for the denial. This request must be provided to you within 30 days. A Long Island criminal conviction discrimination attorney can help with this process.

Ban the Box Law

New York City law extends even further providing New York’s employees with more comprehensive protection. If you are applying for or currently work in any of the city’s five boroughs, New York City’s Fair Chance Act (FCA) applies to you.

The FCA is a law that is also known as Ban the Box. Under New York City’s Ban the Box law, employers are prohibited from asking any questions relating to a job applicant’s criminal history until after a conditional offer of employment has been given to the applicant.

For example, you cannot be forced to check a box on a job application asking whether you have ever been convicted of a crime. Employers are also banned from requiring a background check before extending a conditional offer of employment and posting job ads stating that applicants must have a clean criminal record.

After a conditional offer of employment is made, employers then have free-reign to inquire about previous criminal convictions.

Don’t let your past dictate your future! Call Famighetti & Weinick PLLC’s Long Island criminal conviction discrimination lawyers at (631) 352-0050.

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