As a Hudson Valley criminal defense attorney, I frequently am asked about whether convictions and arrests must be reported on job applications or, for those already employed, whether they must be reported to their employer.
Getting into legal trouble is unfortunately easier than one might think. Many people “do something stupid” as young adults or teenagers, such as shoplifting small amounts of merchandise from stores, trespassing on private property, or leaving a restaurant without paying. These people will otherwise mature, complete schooling, and live law abiding lives. Their parents are usually worried about the impact of the arrest and/or conviction on their careers. Even adults who hold steady jobs and live law abiding lives can find themselves in legal trouble. I have had plenty of clients charged with an assault when the facts were really such that they were defending themselves. They too worry about the impact on an application for a better job or even maintaining their current employment.
There are two key distinctions to keep in mind as we discuss the topic.
1 – There is a difference between how “arrests” and “convictions” are treated in seeking employment.
2 – Not every criminal disposition is a “conviction.” In addition to convictions, there are youthful offender (“Y/O”) adjudications, juvenile delinquency adjudications, and certain convictions that are “sealed” pursuant to the Criminal Procedure Law.
The specifics of each of these types of dispositions are beyond the subject of this blog. If you or a loved one is in legal trouble, a qualified criminal defense attorney will be able to spot these issues in the case and provide a full explanation of how they might apply.
For purposes of this discussion, however, what is important is that as to arrests, under New York’s Human Rights Law, nearly all prospective employers are prohibited from asking applicants about any prior arrests that led to a sealed conviction, a Y/O adjudication, or a juvenile adjudication.
- Thus, if an application asks if the applicant has been convicted of a felony or misdemeanor, but the disposition was actually a Y/O adjudication or a sealed conviction, the applicant should answer “no.”
- Employers in New York also may not legally require applicants to disclose arrests if the case ended in the applicant’s favor, i.e. an acquittal or dismissal.
- However, a job application may legally require the applicant to disclose any arrest that has not yet been resolved and is pending at the time of the application.
- For certain types of public employment, especially law enforcement employment, the applicant does have to reveal this information, but as to nearly all other types of employment, applicants are not required to disclose these matters.
Employers are allowed to ask applicants about convictions.
The Corrections Law and Human Rights Law work together to make it unlawful for the employer to deny employment based on the conviction unless the employer concludes that the conviction either directly relates to the specific employment sought or that the conviction indicates that employment of the individual would involve unreasonable risk to the property, safety or welfare of either specific individuals or the general public. There are specific factors under the law that the employer must analyze in making this conclusion which are too lengthy to set forth in this blog. An applicant denied employment based on a conviction may demand, under the Corrections Law, a written statement of this analysis from the employer, who must provide it within 30 days of the request.
As to convictions, what is usually most important for the applicant is to be honest. If the application asks for a conviction that should be disclosed under the law and the applicant answers the application falsely, it is perfectly proper for the employer to deny employment based on the dishonesty. It is also important to note that employers usually have their own policies about whether an employee has a duty to report arrests and/or convictions that occur during employment. In these scenarios, it is proper for the employer to terminate an employee for not complying with a reporting requirement.
How do these rules apply to you?
There are a number of laws, rules, and regulations that compose the general scheme that underlies the impact of criminal charges on employment, and it would be impossible to summarize them all here. Often, clients are confused as to how these rules will apply to their given criminal case and job application. That is why it is important for the client to ask a qualified criminal defense attorney about how their legal situation is likely to affect their employment and what paths can be taken to minimize or eliminate such impact.