Employers may learn about a criminal record of a potential employee when doing a background check or if disclosure is required on an application. In the majority of cases, employers may not automatically bar everyone with an arrest or conviction record from employment. If an employer is aware of a conviction or incarceration, that information should only bar someone from employment when the conviction is closely related to the job, after considering:
• The nature of the job,
• The nature and seriousness of the offense, and
• The length of time since it occurred.
Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not assume that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the employer should allow the person to explain the circumstances of the arrest. If it appears that he or she engaged in the alleged unlawful conduct, the employer should assess whether the conduct is closely enough related to the job to justify denial of employment.
good summary of the law for employers is available in the New York City Bar’s Guide to Interviewing and Hiring People with Criminal Conviction Histories. See also Employers Guide to NY Correction Law Article 23-A, which includes illustrative scenarios facing employers. The agencies linked below also provide current guidance on incentive programs, such as the Federal Bonding Program, and other supports for hiring those with a criminal record.
For a current list of states, cities and counties that have adopted Ban-the-Box legislation, which prohibits asking about a criminal record until after an offer is made), see this August 2017 report “Ban-the-Box-Fair-Chance-State-and-Local-Guide” from the National Employment Law Project (nelp.org).