Today, the Legal Department primarily focuses on vindicating the rights of people with criminal records. The Department litigates against private and public employers who illegally deny employment and occupational licenses because of criminal convictions, and against private background check companies that facilitate discrimination. We also work with and represent clients who have been denied housing or rental assistance as a result of their conviction histories.
Under New York Correction Law Article 23-A, no one can be denied a job or a license to do a job—or be fired—in New York just because they have a criminal record. Employers may only act adversely against people with criminal records when they can show a direct relationship between the conviction and the job or that employing the person would pose an unreasonable risk to persons or property. Before acting adversely on either ground, however, the employer must analyze the individual’s conviction history in light of the factors in Correction Law § 753:
a. New York public policy encouraging the employment of people with criminal records;
b. The job’s necessary duties and responsibilities and the conviction’s bearing on the employee’s fitness and ability to fulfill them;
c. How long ago the offense occurred, how serious it was, and the employee’s age at that time;
d. Evidence from the employee of rehabilitation and good conduct;
e. The legitimate interest of the employer in protecting people and property; and
f. A Certificate of Relief from Disabilities or Certificate of Good Conduct, which create a presumption of rehabilitation.
An employer can’t simply presume a direct relationship or unreasonable risk exists. Instead, it is required to evaluate the § 753 factors before reaching that conclusion. Also, private employers have legal obligations when using a commercial background check company to obtain the criminal background of employees or job applicants. The federal and New York State Fair Credit Reporting Acts (“FCRA”) require that an employer:
a. Give the applicant or employee notice and get that person’s written permission before running a background check;
b. Certify that it has complied with these notice and permission requirements and that it will not use the report to violate federal or state Equal Employment Opportunity laws or regulations.
c. If the background contains criminal history information and was created after January 1, 2009, the employer must give the applicant or employee a copy of Correction Law Article 23-A.
d. If the employer intends to take an adverse action based on the background check (such as denying a job or firing someone), it must give the applicant or employee a copy of the report and the Federal Trade Commission (“FTC”) Summary of Rights under FCRA within a reasonable time to respond before taking an adverse action.
e. After the employer takes an adverse action, it must tell the applicant or employee that the employer, not the background check company, made the decision, and it must tell the applicant or employee how to obtain a free copy of the background check.
CSS’s Legal Department also supports the Next Door Project by training older adult volunteer counselors to review and help clean up clients’ official criminal records (a/k/a “rap sheets”) and apply for certificates to demonstrate their rehabilitation. The Next Door Project provides this service free of charge to low income New Yorkers. If you or someone you know would like our help to get a copy of your official criminal record, review it for mistakes, work to clean it up, and help you apply for a certificate of relief from disabilities or a certificate of good conduct, please call our hotline at (212) 614-5441. Leave a message with contact information and we will return your call. Please also visit the Next Door Project webpage for more information.
CSS represents individuals in administrative proceedings and, where necessary, in court. We also represent groups of people in class action litigation, and draft “friend of the court” (amicus curiae) briefs on behalf of advocacy and community organizations on issues of vital importance to individuals with conviction histories. Here are some of our active cases:
Dempsey v. New York City Department of Education, et al. (N.Y. Court of Appeals 2014)
CSS authored an amicus brief on behalf of nine advocacy organizations in support of Mr. Dempsey, who challenged the New York City Department of Education’s (“DOE”) decision not to allow him to drive a public school bus. When Mr. Dempsey, a 58-year-old African American man, applied, he had more than 15 years of bus driving experience for private companies, he interacted daily with school-age children and their parents, and he had not been convicted of a crime in 18 years. CSS’s brief argued that the DOE’s decision evidenced a broader failure of state agencies to properly apply Correction Law Article 23-A and urged the Court to clarify the law’s requirements, bolstering this position with criminology research showing how various factors influence people to desist from criminal activity and that advanced age itself is a predictor of desistance.
Godbolt v. Verizon Communications (2013) This case is an appeal to the New York State Supreme Court, Appellate Division, concerning an individual who was terminated from a job after ten years’ employment, allegedly because he left information off of his initial job applications. CSS drafted an amicus curiae brief on behalf of several advocacy and community organizations in support of the plaintiff/appellant concerning proper application of the New York City Human Rights Law.
Houser et al. v. Pritzker (2012)
The putative class action challenges the process by which the U.S. Department of Commerce hired temporary workers for the 2010 Census. In particular, Defendant required all people who had ever been arrested to provide official court documentation of the arrest, and this requirement eliminated 93% of people with criminal records—over 700,000 people—causing an alleged disparate racial impact in violation of Title VII of the Civil Rights Act of 1964. The potential class of people harmed stretches across the nation. CSS is working on this case with a number of co-counsel, and represents one of the named plaintiffs in addition to the putative class. Our motion for class certification is pending.