Can New York Employers Ask About Arrests and Convictions?

Several state laws limit the use of arrest and conviction records by prospective employers. These range from rules prohibiting an employer from asking applicants any questions about arrest records to those restricting an employer’s use of criminal history information in making employment decisions. Can New York employers ask about arrests and convictions during the job application and interview process?

In addition to complying with all applicable federal and state nondiscrimination laws, New York employers with 4 or more employees are generally prohibited from:

1. Inquiring about any arrest or criminal accusation that is not yet or no longer pending against an applicant. However, New York employers are not prohibited from asking an applicant if he or she has any current pending arrests or accusations.
2. Inquiring about an individual’s arrest or criminal accusation where the arrest or accusation has been resolved in favor of the applicant, by a youthful offender adjudication, or resulted in a sealed conviction.
3. Requiring the applicant to divulge information about any arrest or criminal accusation where the arrest or accusation has been resolved in favor of the applicant, by a youthful offender adjudication, or resulted in a sealed conviction.
4. Taking any adverse action based on any arrest or criminal accusation where the arrest or accusation has been resolved in favor of the applicant, by a youthful offender adjudication, or resulted in a sealed conviction.

Also, New York employers with 10 or more employees are generally prohibited from discriminating in employment based on prior convictions.

Finally, at the request of an applicant previously convicted of one or more criminal offenses whose job application has been denied, the employer must provide a written statement setting forth the reasons for the denial within 30 days of the request.

Key Exceptions

New York City employers with 4 or more employees are also generally prohibited from:

1. Inquiring about an applicant’s salary history or relying on an applicant’s salary history in determining the salary, benefits or other compensation for the applicant during the hiring process. However, an employer may—without inquiring about salary history—engage in discussion with the applicant about his or her expectations with respect to salary, benefits, and other compensation. In addition, employers may verify and consider current or prior earnings or benefits if the applicant offers this information voluntarily. Click here for additional information.
2. Inquiring about an applicant’s criminal history or requesting permission to run a criminal background check until after a conditional offer of employment has been made. After a conditional offer of employment has been made, the employer may then ask whether the applicant has a criminal conviction history and run a background check, but only after giving notice and receiving the applicant’s permission. Once the employer knows about the applicant’s conviction history, the employer may then ask the applicant about the circumstances that led to the conviction.
3. Seeking or considering information pertaining to an applicant’s non-conviction.

Finally, if a New York City employer with 4 or more employees wants to revoke a job offer based on an applicant’s criminal record, the employer must:

1. Explain to him or her why using the Fair Chance Notice;
2. Provide him or her with a copy of any background check conducted by the employer or third-party vendor; and
3. Give him or her 3 business days to respond. 

Additional requirements and exceptions to the information above may apply to your business. For more information, please contact the New York State Department of Human Rights or the New York City Commission on Human Rights.

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Source: “Arrests and Convictions in New York (NY)” by Zywave