Must I Hire An Ex-Con?

In New York, the answer is no – but only if you consider him or her first. That’s right – an employer must be contemplative – and except in rare circumstances may not simply have an automatic no-ex-con rule.

This is because except for a law enforcement position, NY Corrections Law prohibits employment or hiring discrimination by private employers of at least 10 people based on an applicant’s prior conviction unless “there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held; or the granting. . . of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

New York law requires an employer to consider the prospect like any other job applicant and use an 8-point test to determine if hiring him would create an unreasonable risk to property or to the safety and welfare of others.

These are the 8 factors to consider in determining whether (or not) to hire a former convict:

1. The State’s public policy to encourage the employment of persons previously convicted of a crime;
2. The duties and responsibilities necessarily related to the employment sought or held by the person;
3. Whether the criminal offense(s) have a bearing on the applicant’s fitness or ability to perform;
4. The length of time since the criminal offense(s);
5. The age of the person at the time he committed the offense(s).
6. The seriousness of the offense or offenses.
7. Any available rehabilitation and good conduct information;
8. The employer’s “legitimate interest. . . in protecting property, and the safety and welfare” of others.

This analysis ought to be documented in writing to protect the employer from a later discrimination claim.

Practically, what does this mean? Simply put, the hiring decision cannot be knee-jerk. Instead, it must be thoughtful and deliberative, and the employer must consider all it knows about the applicant before making a final hiring decision.

There certainly are circumstances where an employer legitimately will conclude that a prospect with a prior criminal conviction should not be hired. But, at least in New York, this may only be done after considering the 8 factors.