Is it the Economy, the Job Market, or my DWI?

One of the wonderful things about practicing law is being popular. Not popular as in, "would you like to come to my party?"... but popular as in getting lots of phone calls, emails, and text inquiries.

One question that comes up quite often is in regards to the impact a conviction can have on future jobs and careers. With the state of today's economy many are struggling to get or maintain employment. I recently reviewed the job ads in local papers and online,

Glazier Position... no misdemeanor convictions in past 2 years, Materials Handler...No Misdemeanor convictions/ deferred adjudications within the last 2 years.-No felony convictions/deferred adjudication whatsoever. Phone sales...All applicants must...be able to pass a seven year criminal background check, some misdemeanor charges may be accepted depending on the nature and year of the conviction.

I think you are beginning to get the big picture. If it's between you or some other job applicant without a criminal conviction, your backgrounds will be considered. Now imagine a number of applicants for a more important assignment, it is a position of trust and authority. This employer plans on investing a sizable number of hours into your training and education. Who do they pick?

So now the obvious legal questions:

Firstly, are employers legally entitled (have a right) to know about my DWI conviction?

1. Employers are entitled by NYS law to ask about all criminal convictions including Misdemeanors and Felonies that resulted in a conviction.

2. Employers are not entitled to know about arrests that were resolved in a dismissal or an acquittal.

NYS Executive Law (Human Rights Law) Section 296(16)
"It is unlawful discrimination, unless specifically required or permitted by statute to make an inquiry about, whether in an application form or otherwise or to act upon adversely to the individual involved any arrest or criminal accusation of such individual not then pending against such individual which was then followed by termination of that criminal action or proceeding in favor of such individual, as defined by Section 160.50 of the Criminal Procedure Law.

Can a future employer deny me a job based on my DWI Conviction?

An employer can not deny you a job unless the conviction is directly related to the job duty or poses an unreasonable risk to persons or property. ie. a school bus driver position and your DWI conviction

Section 296 of the New York Executive Law makes it unlawful for an employer to deny employment to an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of “good moral character” due to his or her prior conviction of a criminal offense, when such a denial is a violation of NY Correction Law article 23-A (Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses).

Under Article 23-A, employers of 10 or more employees are expressly prohibited from making hiring or termination decisions based upon an individual’s conviction record unless:

(1) there is a direct relationship between the prior criminal offense(s) and the specific employment position sought or held by the individual; (see school bus driver example)

(2) hiring or continuing to employ a person would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. Before determining that an individual’s criminal conviction record bars employment or continued employment, Article 23-A requires that those employers weigh each of the following factors:

a. New York’s public policy favoring the employment of previous convicts;
b. The specific duties and responsibilities of the position sought or held by the individual;
c. The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual’s fitness or ability to perform one or more job duties or responsibilities;
d. The time that has elapsed since the occurrence of the criminal offense(s);
e. The age of the applicant or employee at the time of the conviction;
f. The seriousness of the offense (misdemeanor vs. felony);
g. Any additional information produced by the person or on his or her behalf, regarding rehabilitation and good conduct (ie. Certificate of Relief from Disabilities); and
h. The employer’s legitimate interest in protecting its property as well as the safety and welfare of its employees and clients as well as the general public.

If the potential employer can find out about my DWI can they also ask me questions about my past and current drug/alcohol use?

Short answer is they can with some specific limitations. They can not ask questions that would indicate that you had a past drug/alcohol problem or a current problem because those inquiries would violate the Americans with Disabilities Act.

They can ask these questions:

1. Have you ever used illegal drugs?
2. When was the last time you took illegal drugs?
3. Do you drink alcohol?

They can not ask you how much you drink or how much drugs you used.

But practically speaking if they now know about your DWI conviction, and they know you drink or took illegal drugs what are your real chances for employment with this company?

In NYS, you can never erase or seal a violation involving DWAI (impaired driving), and you can never erase, seal, or expunge criminal convictions.

You always have options:

1. You can fight the possibility of a criminal conviction, by fighting the charges against you.
2. You can get a Certificate of Relief from Disabilities. This is for peoplewith no more than one felony and any number of misdemeanor convictions. This certificate demonstrates that the State of New York believes you are rehabilitated. This certificate also removes certain obstructions that you may have from obtaining licenses or getting certain jobs.