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Thursday, August 06, 2015

Disqualification of applicants for a license or employment because of his or her criminal conviction

Disqualification of applicants for a license or employment because of his or her criminal conviction
Source: Civil Service Attorney LawBlog, by Kevin Sheerin

In a lawsuit brought by the New York Community Service Society [DCAS] for petitioner, KM, Judge Moulton of the New York County Supreme Court held “that both the New York City Department of Citywide Administrative Services and the New York City Civil Service Commission failed to consider Correction Law Article 23-A, in disqualifying the petitioner.”

Article 23-A of the Correction Law, enacted in 1976, addresses the “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses,” and attempts to eliminate the effect of bias against ex-offenders by imposing an obligation on employers and public agencies to deal equitably with them by setting out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant status as an ex-offender.

Petitioner had applied for employment as a DCAS special officer  but was disqualified by Citywide Administrative Service. Petitioner then appealed Administrative Service’s decision to the New York City Civil Service Commission. The Commission sustained Petitioner’s disqualification. Supreme Court reversed the Commission’s decision.

In Arrocha v NYC Bd. of Education, 93 NY2d 361, a case involving the denial of a teaching license to an individual who had been convicted of a crime, the Court of Appeals said that the Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime and an applicant for a license or employment may not be automatically disqualified because of his or her previous conviction of a crime.  

Finding that the New York City Board of Education properly considered all eight factors set out in the Article 23-A of the New York State Correction Law when it refused to grant a teaching license to a person with a criminal record, the Court of Appeals explained that Article 23-A sets out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant’s status as an ex-offender. Rather it must measure its decision against the eight criteria set out in §753 of the Correction Law set out below,

1. The public policy of this state, as expressed in this act, is to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

2. The specific duties and responsibilities necessarily related to the license or employment sought;

3. 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;

4. The time that has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

8. 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.”

Read about New York Community Service Society by clicking Article 78 Civil Service Job disqualification case.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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