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Summary of differences between federal and state regulations
Arrest & conviction record inquiries
Applies to state agencies. Fair Chance Hiring 2015.
State agencies may not require disclosure of criminal history information until after an interview has taken place or until the agency is interested in hiring the applicant.
A previously existing law (COR § 752) continues to prohibit any employer (public or private) from denying license or employment to an individual on grounds of a prior conviction unless:
- there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
- the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Private employers may not ask about arrests or charges that have not resulted in a conviction, unless they are still pending, nor may they deny or discontinue employment or otherwise take adverse action based only on one or more convictions, unless it relates to the job or employing the person would put property or people at unreasonable risk. To deny or discontinue employment or otherwise take adverse action based on one or more convictions, the employer must consider:
- Public policy encouraging employment of convicts,
- Job duties and responsibilities,
- Fitness or ability to perform those job duties and responsibilities,
- Time that has passed since the offense,
- Person’s age,
- Seriousness of the offense,
- Rehabilitation of the person, and
- Interest in protecting property and people.
If the employer denies employment, then upon request, it must provide the reasons for denial in a written statement within 30 days.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
New York Division of Human Rights
Conviction record inquiries
New York Department of Correctional Services
New York Division of Human Rights
Regulations
Employer immunity from disclosure claims
None
Arrest record inquiries
New York Executive Law 296.16, Unlawful discriminatory practices
Conviction record inquiries
New York Executive Law 296.15 and .16, Unlawful discriminatory practices
New York Correction Law 750 to 755, Licensure and employment of persons previously convicted of one or more criminal offenses
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
Conviction record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.