Politico: State bans workplace discrimination over minor charges

Proponents say the legislation is needed at a time when background checks for employment have become standard practice across many industries.

Proponents say the legislation is needed at a time when background checks for employment have become standard practice across many industries.

By Emilie Ruscoe
April 11, 2019

A new state measure will protect tens of thousands of New Yorkers against discrimination in the workplace over minor yet outstanding criminal charges.

The bill, NY S3995 (19R) / NY A6045 (19R), will apply to those who have been charged with a crime, but have had those charges adjourned contemplating dismissal — a case status commonly abbreviated as ACD.

“It will allow the tens of thousands of New Yorkers whose criminal cases are resolved with an ACD each year to work and support their families,” said Melissa Ader, an employment lawyer with the Legal Aid Society.

Following adjournment contemplating dismissal, a case technically remains open without further court dates, typically for either six months or a year.

If the defendant does not land back in court during that period, the case is dismissed without further action, and the charges are dropped — although such charges would appear on background checks for some jobs, such as those in law enforcement.

The majority of ACD defendants have received less-serious misdemeanor charges, as opposed to felony charges.

Data from New York’s Division of Criminal Justice Services for 2017, the most recent year available, indicates that approximately 70,400 defendants charged with misdemeanors —nearly a quarter of misdemeanor arrests disposed of on that year’s court calendars — were adjourned contemplating dismissal. ACD was the most common outcome for misdemeanor arrests by far, after conviction.

Though ACD cases remain open and could be put back on a court calendar for prosecution if defendants offend again, data compiled by the Legal Aid Society indicates that this is extremely rare.

Analysis of more than 43,000 cases Legal Aid attorneys worked in the 2016 calendar year indicates that 99.4 percent of ACD cases were eventually dismissed, and most of the remaining resulted in non-criminal violation charges.

New York’s employment law already protects those who have been convicted from facing employment discrimination, but ACD charges, which appear on some commercial background checks simply as an open criminal case, currently could result in defendants being rejected for a job, or fired.

"I've had to say to attorneys, 'I understand that your client maintains their innocence. If they plead guilty to a disorderly conduct violation, they're likely not to face employment consequences. If they accept an ACD, they are likely to face employment consequences," said Ader.

Proponents say the legislation is needed at a time when background checks for employment have become standard practice across many industries.

“The vast majority of jobs in New York require a background check— and those jobs include jobs in schools, jobs in health care, but also jobs in retail, jobs in all sorts of low-wage work,” said Ader. “I mean, it's hard to find a job it does not require a background check.”