Employment Rights and Related Matters

There are many legal issues facing incarcerated youth and adults after they leave the facility. These relate primarily to employment, the “rap sheet,” and the certificates which may compensate for some of the disadvantages ex–offenders face when they leave the facility. The Legal Action Center (see page 48 for address and phone number) has extensive experience with these issues and has prepared the following information.

Employers in New York State may hire and fire at will. While there is no legal right to a job for anyone, illegal discrimination is not permissible. The following information will enable ex–offenders to plan their search for employment judiciously.

Although there is no specific Federal law about criminal histories and employment, court rulings have declared that barring employment because of a criminal history has a disproportionate impact on minorities and is a civil rights issue. New York State Correction Law and Human Rights Law also prohibits a blanket policy of not hiring ex–offenders. These laws extend to private employers with more than 10 employees and public employers with more than four employees and various occupational licensing agents. The law further states that it is illegal to deny an ex–offender a job or license because of a past conviction, unless it relates to the duties of the job such as DWI and driving a vehicle. A job may also be denied if there is an unreasonable risk to the property or safety or welfare of specific individuals or the general public.

In judging potential employment of an ex–offender, the employer must consider each applicant individually and take into account a number of factors including the time since the crime(s), seriousness of the offense(s), age at the time of the crime(s), information about rehabilitation and good conduct, etc. If an ex–offender has been denied employment, he/she may request, and is entitled to, a written statement of the reasons why he/she was denied the job or license.

In addition to Corrections Law, State Human Rights Law also relates to employment by prohibiting public and private employers and occupational licensing agencies from denying employment based on arrests only. For any employer with four or more employees, it is illegal to ask, “Have you ever been arrested?” Law enforcement is exempt from this law.

There are a series of Federal and State laws which relate to employment and disabilities including alcoholism, drug abuse, and HIV disease or AIDS. A Federal law, the Rehabilitation Act of 1973, addresses one of these disabilities by focusing on drug and alcohol history, around which there are special protections in employment. This act prohibits discrimination against persons with a current or former disability who are otherwise qualified to perform the job they seek or hold. Employers are required to make “reasonable accommodations” to the known physical or mental limitations, alcohol or drug abuse in this case, of the individual. So long as these persons are in treatment, no longer using, and are otherwise qualified to perform their jobs, they are protected. Persons with HIV disease or related illnesses such as AIDS are also protected from employment discrimination. This act applies to private employers who hold Federal government contracts, the Federal government, and to both private and public employers who receive Federal grants or aid.