What You Need to Know About Discrimination Based on Arrest and Conviction Records

Most employers and agencies in New York can only deny you a job or license because of your criminal conviction if:

• There is a direct relationship between the work and the offense.
• Giving you the job or license would involve an unreasonable risk to people or property.

To decide whether there is a direct relationship or unreasonable risk, employers and agencies must consider:

• New York’s public policy encouraging employment of people with criminal records;
• The specific job duties;
• The offense’s impact on your ability to perform the job duties;
• The amount of time passed since you committed the offense;
• Your age at the time of the offense;
• The seriousness of the offense;
• The employer or agency’s legitimate interest in protecting people or property;
• Evidence of your rehabilitation and good conduct.

Provide evidence of your accomplishments and good character, such as:

• A Certificate of Relief from Disabilities or a Certificate of Good Conduct;
• Letters of recommendation from your employers, teachers, counselors, clergy, parole/probation officers, family, and friends;
• Evidence that you have attended school, job training, counseling, or other programs;
• Your own explanation of the offense(s) and the positive life choices you have made since then.

If you have a Certificate of Relief from Disabilities or a Certificate of Good Conduct, employers and agencies must presume you are rehabilitated. To learn how to apply for a Certificate of Relief from Disabilities or a Certificate of Good Conduct, click here.

Call the Department of Health’s Criminal History Record Check (CHRC) Legal Review Unit at 518-408-1627. Ask the CHRC what documents their investigator wants you to provide and which conviction(s) the investigator is concerned about.

Within 30 days, respond to the letter in writing with a personal statement that explains the facts of the offense in a truthful and specific way and describes your remorse, accomplishments, and good character. Provide any documents requested by the CHRC investigator and any other evidence of your accomplishments and good character. See above for examples of this evidence.

For more information on the home health aide or certified nurse aide background check process, click here.

Some New York State cases can be “sealed.” It is illegal for most employers and licensing agencies to ask about or to discriminate against you because of the following types of cases:

• Most arrests that did not lead to conviction, for example: cases dismissed after adjournment in contemplation of dismissal (“ACD”);
• Most arrests that led to non-criminal convictions (for example, “disorderly conduct” violations), after you complete the sentence;
• Youthful offender adjudications;
• Juvenile delinquency proceedings and adjudications;
• Prostitution related convictions, if you were the victim of sex trafficking;
• Certain criminal convictions, if you complete a certain type of drug treatment program and meet other requirements;
• Certain criminal convictions, under New York’s new sealing law (see below);
• Cases that are adjourned in contemplation of dismissal (“ACD”).

The first four types of cases should be automatically sealed, but the courthouse often makes mistakes. To learn how to correct these mistakes, head here.

New York’s new sealing law may allow some of your New York State criminal convictions to be sealed if you meet all of the following requirements:

• You are not required to register as a sex offender under New York law;
• You have only one or two criminal convictions;
• Youthful offender adjudications, juvenile delinquency adjudications, and non-criminal violations are NOT criminal convictions;
• You have no more than one felony conviction;
• You are not asking to seal a Class A felony; violent felony; homicide felony; sex offense; sexually violent offense; “sexual performance by a child” offense; felony conspiracy to commit the above crimes; felony attempt to commit the above crimes; federal conviction; or out-of-state conviction;
• You were not convicted of a crime after the latest conviction you’re asking to seal;
• You have no pending arrests;
• At least 10 years have passed since you were sentenced for your last criminal conviction and since you were last released from incarceration for a criminal conviction.

The FCA prohibits most employers and employment agencies in New York City from asking about or considering your pending arrest or conviction record until after they offer you a job, including on job applications or at interviews. Your refusal to respond to an illegal inquiry cannot disqualify you from employment. The FCA does not apply to jobs at law enforcement agencies, police officer or peace officer jobs, and some other jobs.

After you are offered a job, employers can ask about and consider your pending arrest and unsealed conviction record. Employers that want to withdraw the job offer because of your prior conviction must:

• Evaluate the eight factors described above and give you a document called the NYC Fair Chance Notice that explains how those factors apply to the job and your conviction;
• Give you a copy of any background check they ran;
• Give you a reasonable time—at least three business days—to respond.

Employers must consider your response and cannot withdraw the job offer unless there is a direct relationship between the job and the conviction or you pose an unreasonable risk to people or property.

You should truthfully explain the facts of the offense and provide evidence of your accomplishments and good character. If there is an error on the background check, explain that there is an error.

If the employer or agency that discriminated against you is a government agency, file an Article 78 petition in state court within four months of the discrimination. If the employer is not a government agency, file a complaint with the New York City Commission on Human Rights within one year or file a lawsuit in court within three years of the discrimination.

Call our Access to Benefits helpline at 888-663-6880 Monday through Friday from 10:00 a.m. to 3:00 p.m. for help with:

• Unemployment insurance benefits
• Minimum wage
• Overtime and other wage & hour issues
• Employment law issues stemming from past criminal issues
• Immigrant workers
• Workplace discrimination
• Family and Medical leave
• Labor trafficking

The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.