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Tread lightly when contemplating firing employee who’s been convicted of a crime

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in Firing,Human Resources

There’s still confusion about whether and when employers can terminate employees because they have been convicted of a crime.

Until 2007, only applicants were protected from discrimination based on past criminal convictions. Then the New York Legislature broadened the New York Corrections Law (NYCL) to read, “[N]o employment or license held by an individual ... shall be denied or acted adversely upon by reason of the individual’s having been previously convicted of one or more criminal offenses.”

But what about a current employee who, during employment, is convicted of a crime? It’s still not clear that you can fire him because of that conviction.

Recent case: Emilio Noble was convicted of grand larceny. At the time, he was working for Career Education Corp. When the company found out, it fired him.

He sued, alleging that terminating him violated his rights under the NYCL. After his termination, the law was amended to protect applicants and employees.

The court dismissed his case because at the time he was fired, the law covered only applicants. But it left open the possibility that it might interpret the new language to apply only to convictions that predated the start of employment, leaving employers free to fire employees newly convicted. (Noble v. Career Education Corporation, No. 09-3519, 2nd Cir., 2010)

Advice: Until the law is clarified, consult your attorney before firing someone based on criminal records.

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