1. On the Front Lines: Building Skills for Reentry and Diversion March 31, 2010 1

2. Employment Law and Criminal Records Richard Blum Staff Attorney, Employment Law Project Legal Aid Society 2 On the Front Lines: Building Skills for Reentry and Diversion

3. I. Relevant Statutes A. State Law Correction Law Article 23-A, Sections 791- Executive Law, Section 296.15 and 296.16 (Human Rights Law) 3 On the Front Lines: Building Skills for Reentry and Diversion

4. I. Relevant Statutes B. City Law New York City Administrative Code, Section 8-107.10 and 8-107.11 (New York City Human Rights Law) 4 On the Front Lines: Building Skills for Reentry and Diversion

5. I. Relevant Statutes C. Federal Law Title VII EEOC Guidance: http://www.eeoc.gov/policy/docs/convict1.html http://www.eeoc.gov/policy/docs/convict1.html 5 On the Front Lines: Building Skills for Reentry and Diversion

6. II. Key Points A. Coverage Applicants for jobs (public or private sector) and/or licenses Holders of jobs (public or private sector) and/or licenses 6 On the Front Lines: Building Skills for Reentry and Diversion

7. II. Key Points B. Protections No discrimination based on criminal conviction But no protection for misrepresentations on job applications 7 On the Front Lines: Building Skills for Reentry and Diversion

8. II. Key Points B. Protections - Continued Employer/ licensing agency cannot inquire into or make adverse decision concerning: 1.Arrest ending in termination favorable to the individual; 2.Youthful offender adjudication; 3.Conviction for violation that has been sealed. 8 On the Front Lines: Building Skills for Reentry and Diversion

9. II. Key Points B. Protections - Continued No protections re pending charges 9 On the Front Lines: Building Skills for Reentry and Diversion

10. II. Key Points C. Exceptions to Discrimination Protections NOTE: These exceptions in Article 23-A apply to convictions. Unless you are applying for a job in law enforcement or with the Fire Department, New York employers may not ask you about arrests that ended in favorable terminations, youthful offender and sealed violation convictions. 10 On the Front Lines: Building Skills for Reentry and Diversion

11. II. Key Points C. Exceptions to Discrimination Protections Conviction directly related to specific employment or license Unreasonable risk to property or to the safety or welfare of specific individuals or the general public 11 On the Front Lines: Building Skills for Reentry and Diversion

12. II. Key Points D. Eight Factors, All of Which Must be Considered to Invoke Either Exception 12 On the Front Lines: Building Skills for Reentry and Diversion

13. II. Key Points D. Eight Factors… 1.The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. 13 On the Front Lines: Building Skills for Reentry and Diversion

14. II. Key Points D. Eight Factors… 2.The specific duties and responsibilities necessarily related to the license or employment sought or held by the person. 14 On the Front Lines: Building Skills for Reentry and Diversion

15. II. Key Points D. Eight Factors… 3.The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. 15 On the Front Lines: Building Skills for Reentry and Diversion

16. II. Key Points D. Eight Factors… 4.The time which has elapsed since the occurrence of the criminal offense or offenses. 16 On the Front Lines: Building Skills for Reentry and Diversion

17. II. Key Points D. Eight Factors… 5.The age of the person at the time of occurrence of the criminal offense or offenses. 17 On the Front Lines: Building Skills for Reentry and Diversion

18. II. Key Points D. Eight Factors… 6.The seriousness of the offense or offenses. 18 On the Front Lines: Building Skills for Reentry and Diversion

19. II. Key Points D. Eight Factors… 7.Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. 19 On the Front Lines: Building Skills for Reentry and Diversion

20. II. Key Points D. Eight Factors… 8.The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. 20 On the Front Lines: Building Skills for Reentry and Diversion

21. II. Key Points In making a determination under the two exceptions above, “the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified.” 21 On the Front Lines: Building Skills for Reentry and Diversion

22. III. Remedies A. Letter requesting reasons from employer/ license giver 22 On the Front Lines: Building Skills for Reentry and Diversion

23. III. Remedies B. Administrative New York State Division of Human Rights (private employer) New York City Commission on Human Rights (private employer) EEOC 23 On the Front Lines: Building Skills for Reentry and Diversion

24. III. Remedies C. Litigation Article 78 (public employer) State court plenary action (City Law/private employer, and Executive Law § 296.16) Federal court w/ federal and state/city claims 24 On the Front Lines: Building Skills for Reentry and Diversion

25. IV. Government Review & Contractors (focus on DOH and OMRDD) A. Laws B. Practices C. Advocacy Tips & Pitfalls 25 On the Front Lines: Building Skills for Reentry and Diversion