DEAR CARRIE: I live on Long Island, and my son lives in Florida. He can’t seem to hold onto a job because of his criminal record. He has applied for jobs in the medical field and has no trouble getting hired. But he is let go as soon as an employer receives his criminal history. He was arrested for driving under the influence eight years ago and for domestic violence four years ago.
He has told new employers upfront about his past, but as soon as a background check turned up his convictions, they fired him. They tell him his record is the reason. Can he be penalized forever for something that happened many years ago? How can he get past this if no one gives him a chance? All he wants to do is work and support his family. — The Truth Hurts
DEAR TRUTH HURTS: If your son worked in New York he would have some protections.
“Unlike most states, New York has a law that prohibits arbitrary employment discrimination on the basis of criminal records,” said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.
What does that mean?
“In order to hold a criminal conviction against an employee or job applicant, a New York employer must show that it has carefully considered whether the criminal conviction is sufficiently related to the job,” he said.
Several factors must be considered, Kass said. They include the duties of the job, the nature of the crime, how long ago the crime was committed, the age of the offender at the time, evidence of rehabilitation and the state’s policy of encouraging the employment of convicts, he said.
“If asked by a rejected applicant, the employer must provide a written statement explaining how it weighed these factors,” he said.
For example, he said a nursery school is allowed to reject an applicant for a teaching position if he has just been released from prison after serving time for a sexual offense against children.
“On the other extreme, a factory cannot refuse to hire a 70-year-old applicant who was convicted of marijuana possession when he was 20 and who has been an upstanding member of the community ever since,” he said.
New York City goes a step further, he said. There, an employer can’t legally ask about an applicant’s criminal history until after it has made a conditional offer of employment.
“In other words, the employer must first go on record as stating that it will hire the employee unless the employee turns out to have a disqualifying criminal record,” he said.
Federal laws offer less protection.
“Unlike a person’s race or national origin, a person’s arrest or conviction record is not a protected characteristic under federal workplace anti-discrimination laws,” said a spokesman in the New York District Office of the Equal Employment Opportunity Commission in Manhattan.
But because arrest and conviction rates for African-American and Latino men are disproportionately higher than those for white men, “employers who use information about a person’s criminal history when making employment decisions may still run afoul of the disparate impact provisions [of] Title VII of the Civil Rights Act of 1964,” he said.
They could run afoul if their policies “disproportionately screen out members of a protected group,” he said, “unless the employer can demonstrate that the policy or practice is job-related and consistent with business necessity.”