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  1. #1
    Join Date
    Oct 2011
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    2

    Default Can You Sue an Employer for Declining to Hire Due to Criminal Record

    My question involves labor and employment law for the state of: NY

    I was offered a job opportunity with Sprint. I passed all the assessments, 2 interviews and during the interview was asked if I had any convictions. I told them i was convicted of an A misdemeanor sentenced to 3 years probation, but was granted a certificate of relief from disabilities during my sentence and informed her that I was on probation. The recruiter proceeded to tell me that it would not be a problem. After completing the drug screen and submitting the background check, I got a phone call about 1 week later from the same recruiter, stating that sprints legal department denied me the opportunity because I was still on "Probation", NOT because of the charge, even though i informed them that I had a certificate of relief from disabilities (which removes bars from employment).

    On the background check I received in the mail, it states that I admitted to the charge. Can I sue them for denying me employment for the reason they specified?

  2. #2
    Join Date
    Sep 2011
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    OH10
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    15,320

    Default Re: Denied Job Offer After Background Check for a Reason That Doesn't Oblige. Pls

    No. You were not hired because you were on probation. A bigger fish made the call.

  3. #3
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,276

    Default Re: Can I sue an employer for denying me due to discrimination?

    thats not discrimination .. so, no you don't have a claim based on anything

  4. #4
    Join Date
    Sep 2005
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    Behind a Desk
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    75,912

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    This is an outside recruiter, not a Sprint employee?

    Are you still on probation?

  5. #5

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    The good news for you is that New York State has the strongest state law, “Article 23A,” prohibiting employment discrimination based on criminal history in the nation. Article 23A could possibly provide you with a vehicle to challenge your denial of this employment opportunity.

    However, there is potential bad news for you. The state courts have permitted companies to link tangential elements of the offense (e.g., dishonesty) to general requirements of employment (e.g., self-control) in an effort to manufacture a direct relationship between the past crime and the employment opportunity, and consequently to circumvent the law. For example, if you were convicted for misuse of another person’s credit card, then your potential employer may succeed in arguing it cannot hire you a sales clerk, a position with ready access to customer credit and other personal information. Accordingly, the nature of the underlying offense and the job duties of the prospective position can determine whether you can proceed with a winning Article 23A claim.

    With respect to your removal of disabilities certificate, it will enhance your prospects of being hired in general and may help you with a potential lawsuit against this particular employer. However, it is not a “slam dunk.” The courts have allowed employers to advance similar rationalization arguments to undermine the effectiveness of such certificates in certain circumstances.

    In light of the foregoing, you should contact local counsel with experience in this area to explore whether you have a viable claim under Article 23A. He or she can better advise you whether your particular facts will support a possible cause of action under the law against this prospective employer.

  6. #6
    Join Date
    Dec 2009
    Location
    Merida, Mexico
    Posts
    1,454

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    Quote Quoting ESteele
    View Post
    The state courts have permitted companies to link tangential elements of the offense (e.g., dishonesty) to general requirements of employment (e.g., self-control) in an effort to manufacture a direct relationship between the past crime and the employment opportunity, and consequently to circumvent the law. For example, if you were convicted for misuse of another personís credit card, then your potential employer may succeed in arguing it cannot hire you a sales clerk, a position with ready access to customer credit and other personal information.
    The potential link between misusing others' credit cards and working as a sales clerk with ready access to people's credit cards can hardly be called manufactured or tangential! You make it sound like there's something wrong with/sleazy about employers who make this most logical connection!

  7. #7
    Join Date
    Oct 2011
    Posts
    2

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    I am no longer on probation. and No this was NOT an outside recruiter, The recruiter worked directly for Sprint. I was granted an early discharge from probation in july so i basically served 2 years out of a 3 year sentence. My other question is, is it too late to pursue legal action if i was able to? I was denied this job in april of 2010 so it has been about 1 year and 6 months.

  8. #8
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    17,947

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    As far as I am able to determine, the statue of limitations in NY is one year; therefore, you have waited about six months too long to take action.

  9. #9

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    As mentioned earlier, you very much need to consult immediately with experienced local counsel to gain definitive answers to the limitations question.

    I personally have not researched this issue in many years. As I recall, I THINK the applicable limitations period for judicial action was three years. (In contrast, the limitations period for administrative actions under this statute is one year.) DO NOT RELY ON MY RECOLLECTION, HOWEVER. Again, you very much need to directly contact a knowledgeable attorney as soon as possible to confirm the applicable limitations period and otherwise to assess the viability of your potential case.

    Two final notes: First, it is my understanding New York amended Article 23-A of the New York Correction Law in 2009 to require employers to provide an individual subject to a background check with a copy of Article 23-A. If the prospective employer here failed to give you a copy of the law, you and your prospective counsel will need to consider whether this failure gives rise to an additional cause of action and/or further supports your underlying putative discrimination claim.

    Second, you and your counsel will want to research the possible applicability and interplay of Article 23-A, the New York State Human Rights Law and the New York City Human Rights Law. As I understand it, all three statutes prohibit employment discrimination against individuals with a past conviction or convictions.

  10. #10
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,276

    Default Re: Can You Sue an Employer for Declining to Hire Due to Criminal Record

    When I get asked the stupid question: where do you see yourself in five years? I answer: Off probation !

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