Q. Our employment application asks, “Have you ever been arrested? If so, list the nature of the arrest.” Is this legal? ...
A. No. The New York Human Rights Law prohibits discrimination on the basis of an applicant’s arrest record. However, you may ask, “Have you ever been convicted of a criminal offense? If so, provide the details.”
Even so, you need to remember that the New York Corrections Law sets forth a specific balancing test to determine whether convictions may justify making an adverse-employment decision.
To stay on the safe side, there are many related, lawful questions you may ask, such as:
- “Have you ever been discharged or suspended from any previous employment? If so, describe the details.”
- “Have you ever been the target of a workplace investigation? If so, describe the details.”
Honest answers to these questions may prove to be very valuable. In the event of future litigation by the employee, dishonest answers also can prove to be very valuable and may be a basis for discharge.