['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Both the federal and state requirements do not cover employer immunity from disclosure claims.
Arrest record inquiries
In New York, an employer may not ask about arrests or charges that have not resulted in a conviction, unless they are still pending. This is more stringent than the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and New York have no laws or regulations specifically prohibiting conviction record inquiries. However, an employer may not 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.
New York’s requirements are more stringent than EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
New York Division of Human Rights Headquarters
Conviction record inquiries
New York Department of Correctional Services
New York Division of Human Rights Headquarters
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 Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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