Lawyer Monthly - December 2021 Edition

ne in every three US adults has a criminal record. There are 2.3 million people in prison in the US, a 500% increase over the last four decades. 27% of ex-convicts in the US are unemployed. In addition, statistics show the disproportional impact the criminal justice system has on people of colour. The University of South Carolina put together a study with the data from a 16-year US Bureau of Labor Statistics survey to look at US crime statistics. The research showed that almost half of Black American males (49%) were arrested at least once before their 23rd birthday. In comparison, this number was 40% for white males and 44% for Hispanic males. Even in the age of the Great Resignation, searching for a new job is not easy. The application process alone can cause an applicant significant frustration. Am I answering this question correctly? What is the employer asking me in this question? These are some of the common questions applicants might have to consider while completing an application. This is in addition to memorising o Navigating Employment Discrimination Based on Criminal History US citizens with criminal convictions face an uphill struggle when looking for employment. This is due in large part to bias on the part of employers, whether conscious or unconscious. But what rights do job-seekers with past convictions have during the application process? Lawyer Monthly hears from Marjorie Mesidor and Darnisha Lewis-Bonilla at Phillips & Associates, who dissect the employability rights afforded to those with a criminal record, both in New York and the US more widely. EXPERT INSIGHT 49 DEC 2021 | WWW.LAWYER-MONTHLY.COM employment dates for prior employers, carefully selecting professional references, all while making sure to answer the questions accurately. This process is complicated even further when applicants are asked questions about their criminal history. First, applicants may not understand the information the employer is seeking. Second, they may not know what, if any, information the applicant is obligated to disclose. Third, once the applicant discloses the information, they run the risk of being denied the job opportunity. If an applicant is denied a job opportunity based on their criminal history, discrimination may be afoot. For this reason, it is imperative that applicants and employers alike understand the law and what is at stake. Before we discuss the laws designed to protect applicants from discrimination based on criminal history, it is important that we address some of the terminology frequently used to obtain information about one’s criminal history. By understanding the meaning of these terms, applicants can ensure that they are providing accurate information to employers. A failure to accurately report one’s criminal history could result in negative consequences not only during the application process, but for any potential legal claims of discrimination an applicant may have. For example, answering “yes” to a criminal conviction inquiry, when applicants receive an Adjournment in Contemplation of Dismissal (ACD), could cause them to miss out on a job simply based on a lack of understanding. As such, we will start by defining some common terms for applicants to know. Definitions What is an arrest? An “arrest” occurs when a person is taken into custody of law enforcement based on probable cause with or without a warrant. It is simply an accusation. It is important to note an arrest is not a conviction. Moreover, an arrest does not necessarily lead to a conviction. Cases are disposed of in a myriad of ways. For example, a person may have been arrested and the charges were dismissed or resolved in a manner that did not include a conviction. It is important to remember this difference, as under most circumstances an employer cannot inquire about an arrest. So, an applicant should not erroneously report a conviction when they were merely arrested. What is an ACD pursuant to CPL 170.55 or CPL 170.56? An Adjournment in Contemplation of Dismissal, One in every three US adults has a criminal record. There are 2.3 million people in prison in the US, a 500% increase over the last four decades.