As opposed to enquiring and asking about a job applicant’s salary, criminal, and marijuana use history, there are no statutory limitations on the right of an employer to carry out employee drug test in New York. However, owing to the lack of such statutory limitations, it is crucial to be careful since an employee who succeeds in establishing the false perception of disability or even actual disability before a court may have a cause of action against an employer if such an employer takes action against them on the basis of the drug test results.
As we move forward, let’s examine what the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) say about conducting criminal background checks on job applicants.
NYCHRL & NYSHRL on Conducting Employee Criminal Background Checks
Despite their desire to run criminal background checks on potential employees, employers must be cognizant of the legal implications and outcomes of doing so.
On the one hand, employers are prohibited, as codified under NYC Administrative Code 8-107, subd. 11-a of the NYCHRL, from enquiring about any pending convictions and/or arrests from potential employees and job applicants until they have a conditional employment offer.
On the other hand, as codified under N.Y. Exec. Law § 296(16) of the NYSHRL, employers are prohibited from asking about a job applicant’s convictions that have been sealed, youthful offender adjudications, or arrests that did not result in a conviction or that are not currently pending. Additionally, pursuant to N.Y. Corr. Law § 752, employers are also prohibited from using an applicant’s criminal history as a basis for denying employment unless the offenses in question pose an unreasonable risk to persons and/or property or directly relate to the individual’s ability to perform the job they are applying for.
Most importantly, as codified under N.Y. Corr. Law § 754, an employer is required, through a written statement, to explain why they denied a job applicant’s employment request in case they use criminal history as the basis of denying the individual employment.
In Part XVI of this series and our blog post titled “New York City Law on Running Credit Checks on Job Applicants,” we will hammer on what the law says about conducting credit checks on job applicants, which is another key employment issue that significantly affects start-ups, growing businesses, and companies in New York.
As usual, stay tuned for more legal guidance, training, and education.
In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.