Lawyer Monthly - December 2021 Edition

56 WWW.LAWYER-MONTHLY.COM | DEC 2021 EXPERT INSIGHT applicable, shall be denied or acted upon adversely by reason of the individual’s having been previously convicted of one or more criminal offences, or by reason of a finding of lack of “good moral character” when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offences, unless: (1) there is a direct relationship between one or more of the previous criminal offences and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. If the employer cannot satisfy these requirements and still denies the individual the license or employment, based on the criminal conviction it is quite possible the employer is engaging in unlawful discriminatory practices. For instance, discrimination may arise during the application stage, where one is offered the position and then denied it once their background check is completed, or while currently employed, where one is convicted of a crime while employed and the employer uses said conviction as the basis for terminating them. If you believe you have been subjected to discrimination based on a criminal conviction: • Contact an attorney that has experience in prosecuting criminal conviction discrimination cases; • Maintain any records that may be relevant (i.e. emails with offer letter, background check, rejection letter following background check). If an employer is considering not hiring an applicant because of their record, the applicant still has rights. Analysis and give the applicant its written decision. New York Corrections Law, Article 23-A, §752 In a nutshell, this statute is designed to ensure that individuals with prior convictions are not unfairly disadvantaged and denied license or employment opportunities solely based on the prior convictions. While it does not afford an individual entitlement to a license or employment, it creates safeguards to ensure they are being evaluated in a fair and objective non-discriminatory way. For example, in order for the individual to be denied a license or employment based on a criminal conviction, the employer must demonstrate two things: first that there is a direct relationship between the criminal offence and the license or employment sought; and second that granting the license or employment would create an unreasonable risk to property, safety or wellbeing of others. § 752. Unfair discrimination against persons previously convicted of one or more criminal offences prohibited. No application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are