It should come as no surprise to New York employers that making an employment decision based on an applicant or employee's criminal background can be unlawful. See N.Y. Corr. Law § 752; see also N.Y. Exec. Law § 296 (15).  Despite this general prohibition, there are two statutory carve outs which permit employers to make such a decision: (1) when the employee's or applicant's criminal offense(s) bear a "direct relationship" to the employment sought; or (2) when such individual's employment poses "an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public."  Moreover, N.Y. Corr. Law § 753 provides a list of factors for employers to consider when deciding whether an individual falls into one of these  exceptions.  Until recently, however, there was little court-provided guidance on how employers should implement these statutory provisions.  In a recent decision, Matter of Thomas v. New York City Dept. of Educ., Judge Peter H. Moulton of the New York Supreme Court offered some much-needed clarification on how employers should implement these exceptions.  

In Matter of Thomas, the petitioner – a former paraprofessional for special needs students who was fired from the Department of Education ("DOE") after pleading guilty to a drunk driving offense in which he seriously injured a pedestrian – argued that his application for reemployment had been improperly denied in violation of New York's ban on criminal convictions discrimination.  The DOE, in turn, argued that its decision was justified because it had considered the proper statutory factors when evaluating his application and the petitioner "denied responsibility for hitting the pedestrian and denied having an alcohol problem" during his interview.

Judge Moulton found that the DOE's decision to deny a former employee's application to return to work was "arbitrary and capricious" (a more employer-friendly standard than a typical civil action applied in Article 78 proceedings involving judicial review of governmental agency administrative decisions).  In so holding, Judge Moulton noted that "DOE considered all the requisite elements" in concluding that the petitioner's prior acts directly related to his prior convictions and/or employing him posed an unreasonable risk to the welfare and safety of children.  Yet, despite making the proper legal considerations, the Court found, with respect to the "directly relates" exception, the DOE never expressly connected the how the petitioner's former crime or acts related to his official job duties.  Nor could the Court find any record evidence concerning a direct relationship between the two.  As such, the Court concluded that the denial was based "simply on supposition unsupported by facts." 

As to whether petitioner qualified for the "unreasonable risk" exception, Judge Moulton observed that the DOE failed, pursuant to N.Y. Corr. Law §753(2), to afford petitioner the proper presumption of rehabilitation with regard to his prior offense, as he had obtained a certificate of relief from disabilities as proof that he was rehabilitated.  The Court, therefore, found that that the DOE, in concluding that petitioner posed a risk to children "because he would relapse or because he is in denial," simply failed to trust that the petitioner had, in fact, been rehabilitated without any legitimate basis for doing so.  

The lesson of this opinion for New York employers is that merely considering the statutory factors set forth in the New York Corrections Law may not be enough to take action based on an employee's or applicant's criminal history.  Accordingly, when making such decisions, employers should make specific and well-founded determinations: (a) connecting the individual's crime to his or her ability to perform the job duties in question; or (b) articulating the specific reasons the individual may pose an unreasonable risk to property or safety.  These findings should also take into account all of the factors set forth in  N.Y. Corr. Law §753.