State and local governments around the country are enacting laws addressing criminal history discrimination. Job seekers often find that a criminal conviction automatically disqualifies them for jobs, regardless of whether the particular conviction is relevant to the job. Finding employment is a critical part of reentering society after spending time in jail, and having a job is often a condition of probation or parole. Categorically denying people job opportunities on this basis harms those people, and it can also harm employees and the broader economy by keeping valuable workers out of the workforce. Laws against criminal history discrimination, often known as “Ban the Box” (BTB) laws, keep criminal history information out of the job application process until an offer of employment is imminent. The California Legislature enacted a law in 2016 that extends this protection to various types of juvenile criminal records.
At a minimum, BTB laws prohibit employers from advertising job openings as being open only to people without a criminal history, and from inquiring about criminal history in the initial stages of the job application process. The “box” in the name refers to the proverbial check box on job applications asking a yes/no question about criminal history, resulting in the automatic rejection of anyone who checks “yes.” In New York City, an applicant must have a conditional offer of employment before the employer may ask about their criminal history. N.Y.C. Admin. Code § 8-107(11-a)(a)(2). If the employer then makes an adverse decision based on this information, it must notify the applicant and give them an opportunity to respond.
A separate judicial system handles juvenile criminal cases in most states. They tend to use different legal terminology and procedures, and they focus more on rehabilitation than on punishment. Juvenile records are often sealed once a person turns 18, meaning that no one can access the records without a court order. Many states allow for the expungement of juvenile records, meaning that the records are removed and destroyed. New York automatically seals the records of juvenile cases that do not result in a conviction, known as a “finding of delinquency.” N.Y. Fam. Ct. L. § 375.1. In cases that result in such a finding, the defendant can file a motion to seal the records. Id. at § 375.2.
The governor of California signed Assembly Bill No. 1843 into law on September 27, 2016, and it took effect on January 1, 2017. Prior to this, state law prohibited employers from considering arrests that did not lead to convictions, participation in pre- or post-trial diversion programs, or convictions that had been dismissed or sealed by court order. The new law applies the same restrictions to juvenile records that are not otherwise sealed. It also excludes final adjudications by juvenile courts—the equivalent of a “finding of delinquency”—from the definition of a “conviction.” Cal. Lab. Code § 432.7. The law is still not as expansive as New York City’s law, but it is a major step in the right direction.
The criminal conviction discrimination attorneys at Phillips & Associates help job applicants, employees, and former employees in New York City bring claims for unlawful employment practices under city, state, and federal employment statutes. To schedule a free and confidential consultation with a knowledgeable and skilled advocate for employee rights, contact us today through our website or at (212) 248-7431.
More Blog Posts:
Study Examines How “Ban the Box” Laws Might Affect Race Discrimination in Employment, New York Employment Attorney Blog, September 28, 2016
Ridesharing Company Faces Multiple Class Actions Alleging Unlawful Background Check Practices, New York Employment Attorney Blog, July 29, 2016
New York Laws Imposing Employment-Related Consequences for Criminal Convictions, New York Employment Attorney Blog, July 22, 2016