Sunday, January 29, 2012

Ithaca Lawyer "Can Future Employers Hold Stuff Against You?"

Getting a professional license or a job these days is hard enough. What if you have a past? What if you have had some errors in judgment? Employers cannot discriminate against you with or without criminal convictions.

The controlling sections of NYS law are under New York Correction Law - Article 23-A - § 752 &  §  753. Unfair Discrimination Against Persons Previously Convicted of One or More Criminal Offenses Prohibited.

NYS “encourages” employers and license granters to employ and license those previously convicted of crimes. It is not cut and dried. They must apply the factors set out below to assess your past and what you desire to do in the future.

First caveat, you are only obligated to tell of crimes. Criminal convictions are only those that are either misdemeanor or felony level offenses. This does not pertain to violations. They may be called offenses, you may have been convicted of them, but they are NOT crimes under NYS law. Therefore, a disorderly conduct conviction (a violation), or a DWAI (driving while ability impaired) also a violation, are NOT criminal convictions and should not have to be revealed or held against you by a future employer.

Second caveat, be sure to hold on to proof of your rehabilitation. This includes drug/alcohol evaluations, screenings, completion of any and all treatment, meetings, etc.  If you have any criminal convictions this proof is vital to your allaying the fears of employers or licensing boards. Also have copies of all of your past Court documents: including arrest report, dates of crimes, Courts, and final “outcome” documents (called certificates of disposition).

§  752.  Unfair discrimination against persons previously convicted of
  one or more criminal offenses 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 applicable, shall be denied or
  acted  upon  adversely  by  reason  of  the  individual's  having   been
  previously convicted of one or more criminal offenses, 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 offenses, unless:
    (1) there is a direct relationship between one or more of the previous
  criminal  offenses 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.

Any future employer or licensing body (board) must give consideration to the factors below even if you have had prior criminal convictions. How you present yourself and your past in the best light is both art and science. 

1. Be sure to be as complete as possible;
2. Your documentation of everything is vital to their decision;
3. Where are you currently?

Takeaway: Explain your past behavior, present yourself as stable now, and allay their future fears.

§  753.  Factors  to  be  considered  concerning  a  previous criminal
  conviction; presumption.  1.  In  making  a  determination  pursuant  to
  section  seven  hundred  fifty-two of this chapter, the public agency or
  private employer shall consider the following factors:
    (a) The public policy of this state, as  expressed  in  this  act,  to
  encourage  the  licensure and employment of persons previously convicted
  of one or more criminal offenses.
    (b) The specific duties and responsibilities  necessarily  related  to
  the license or employment sought or held by the person.
    (c)  The  bearing,  if any, the criminal offense or offenses for which
  the person was previously convicted will have on his fitness or  ability
  to perform one or more such duties or responsibilities.
    (d)  The  time  which has elapsed since the occurrence of the criminal
  offense or offenses.
    (e) The age of the person at the time of occurrence  of  the  criminal
  offense or offenses.
    (f) The seriousness of the offense or offenses.
    (g) Any information produced by the person, or produced on his behalf,
  in regard to his rehabilitation and good conduct.
    (h)  The  legitimate interest of the public agency or private employer
  in  protecting  property,  and  the  safety  and  welfare  of   specific
  individuals or the general public.
    2.  In  making  a  determination  pursuant  to  section  seven hundred
  fifty-two of this chapter, the public agency or private  employer  shall
  also  give consideration to a certificate of relief from disabilities or
  a certificate of good conduct issued to the applicant, which certificate
  shall create a presumption of rehabilitation in regard to the offense or
  offenses specified therein.

Lawrence Newman, D.C., Esq.
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850