Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, July 27, 2011

All Correction Law §753 factors must be considered before disqualifying an applicant because of his or her conviction of a crime

Matter of Acosta v New York City Dept. of Educ., 2011 NY Slip Op 02073, Court of Appeals

In this decision the Court of Appeals explains that where a prospective employer rejects an applicant for employment because of that individual’s conviction of a crime, Correction Law §753 requires that the employer must determine that the conviction is relevant to the duties of the position or poses an unreasonable danger to clients, co-workers or the public.*

In affirming the Appellate Division’s ruling, the Court of Appeals said that it concluded that “the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying [Acosta’s] application for security clearance.”

The Court of Appeals explained:

The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The "direct relationship" exception and the "unreasonable risk" exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law §753 (see Arrocha, 93 NY2d at 364).

As to the “direct relationship” exception, here there must be “a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual" in order to deny the applicant the employment or a license.

The second exception, “unreasonable risk” permits the denial of employment or a license to an individual where "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."

The following eight criteria must each be considered by the appointing authority:

1. 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.

2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

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 which 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.

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."

In the words of the Court of Appeals, A failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive.

NYPPL’s summary of the Appellate Division’s ruling, 62 AD3d 455, is posted on the Internet at ] 

The Court of Appeal's decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Employment Law | Permalink


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