In addition to complying with all applicable federal and state nondiscrimination laws, during the job application and interview process, New York employers must follow state laws on criminal records and salary history inquiries.
Arrests and Convictions
In general, employers with 4 or more employees are generally prohibited from:
- Inquiring about any arrest or criminal accusation that is not yet or no longer pending against an applicant. However, New York employers are not prohibited from asking an applicant if he or she has any current pending arrests or accusations.
- Inquiring about an individual’s arrest or criminal accusation where the arrest or accusation has been resolved in favor of the applicant, by a youthful offender adjudication, or resulted in a sealed conviction.
- Requiring the applicant to divulge information about any arrest or criminal accusation where the arrest or accusation has been resolved in favor of the applicant, by a youthful offender adjudication, or resulted in a sealed conviction.
- Taking any adverse action based on any arrest or criminal accusation where the arrest or accusation has been resolved in favor of the applicant, by a youthful offender adjudication, or resulted in a sealed conviction.
Also, New York employers with 10 or more employees are generally prohibited from discriminating in employment based on prior convictions.
Finally, at the request of an applicant previously convicted of one or more criminal offenses whose job application has been denied, the employer must provide a written statement setting forth the reasons for the denial within 30 days of the request.
Salary History
Effective Jan. 6, 2020, employers cannot:
- Rely on an applicant’s wage or salary history to determine whether to offer a job to or how much to pay the applicant;
- Seek, request or require the wage or salary history from an applicant or employee as a condition of or consideration for employment or promotion;
- Retaliate against or refuse to interview, hire, promote or otherwise employ an individual based on his or her past wage or salary or because he or she has either refused to provide past wage or salary information or filed a complaint with the New York Department of Labor against the employer; or
- Seek, request or require a wage or salary history from the applicant’s current or former employer.
An employer may confirm an individual’s wage or salary history if:
- An offer of employment for a specified compensation amount has been made; and
- The individual responded to the offer by providing prior pay information to support a higher compensation amount.
Additional Requirements
Albany County Employers
Albany County employers with 4 or more employees are generally prohibited from:
- Screening job applicants based on their current or past compensation, including benefits.
- Requiring an applicant’s prior compensation to satisfy minimum or maximum criteria.
- Asking for or requiring a job applicant to disclose prior compensation as a condition of being interviewed or continuing to be considered for an employment offer.
- Before making a job offer with compensation, seeking a job applicant’s salary history from a current or former employer. However, after any such offer has been made, a job applicant may provide written authorization to confirm prior compensation.
New York City Employers
New York City employers with 4 or more employees are also generally prohibited from:
- Inquiring about an applicant’s salary history or relying on an applicant’s salary history in determining the salary, benefits or other compensation for the applicant during the hiring process. However, an employer may—without inquiring about salary history—engage in discussion with the applicant about his or her expectations with respect to salary, benefits, and other compensation. In addition, employers may verify and consider current or prior earnings or benefits if the applicant offers this information voluntarily. Click here for additional information.
- Inquiring about an applicant’s criminal history or requesting permission to run a criminal background check until after a conditional offer of employment has been made. After a conditional offer of employment has been made, the employer may then ask whether the applicant has a criminal conviction history and run a background check, but only after giving notice and receiving the applicant’s permission. Once the employer knows about the applicant’s conviction history, the employer may then ask the applicant about the circumstances that led to the conviction.
- Seeking or considering information pertaining to an applicant’s non-conviction.
- Effective May 10, 2020, requiring applicants to submit to marijuana testing as a condition of employment. However, a pre-employment testing exception applies to:
- Police and peace officers;
- Individuals required to comply with section 3321 of the city’s building code or section 220-h of the labor law—both dealing with construction safety training;
- Individuals required to hold a commercial drivers’ license;
- Individuals who supervise or care for children, medical patients or vulnerable persons;
- Individuals with the potential to significantly impact the health or safety of employees or members of the public (as determined by the city’s administrative services);
- Drug testing requirements under certain federal, state and local rules relating to transportation, safety or security;
- Federal contracts and grants requiring drug testing; and
- Collective bargaining agreements that address this type of pre-employment drug testing.
Finally,if a New York City employer with 4 or more employees wants to revoke a job offer based on an applicant’s criminal record, the employer must:
- Explain to him or her why using the Fair Chance Notice;
- Provide him or her with a copy of any background check conducted by the employer or third-party vendor; and
- Give him or her 3 business days to respond.
Suffolk County Employers
Suffolk County employers with 4 or more employees will be generally prohibited from:
- Inquiring about a job applicant’s wage or salary history, including compensation and benefits.
- Relying on the salary history of a job applicant in determining the job applicant’s wage or salary amount at any stage in the employment process, including the job offer.
Westchester County Employers
Westchester Countyemployers with 4 or more employees are also generally prohibited from:
- Relying on the wage history of a prospective employee from any current or former employer in determining his or her wages.
- Requesting or requiring a prospective employee to disclose information about his or her wages from any current or former employer as a condition of being interviewed or continuing to be considered for employment.
- Seeking the previous wages of any prospective employee from any current or former employer. However, after obtaining written consent, employers may seek to confirm prior wage information after an offer of employment has been made and the prospective employee responds to the offer by providing prior wage information to support a higher wage.
- Refusing to hire or otherwise retaliating against an employee or applicant based on prior wage history.
- Including in any advertisement, solicitation, or publication any limitation or specification in employment based on a person’s arrest record or criminal conviction.
- Questioning or making a statement about a criminal conviction or arrest record of any person in an application for employment. After the submission of an application for employment, an employer may inquire about the applicant’s arrest or conviction record in accordance with state law. Before taking any adverse employment action based on that inquiry, however, the employer must perform an analysis of the applicant’s criminal record and other factors, and the analysis may be requested by the applicant. If requested, the employer must provide a written statement setting forth the reasons for the denial.
Additional Resources
Additional requirements and exceptions to the information above may apply to your business. For more information, please use the resources listed below.
- Albany County
- New York State Department of Human Rights
- New York City Commission on Human Rights
- Suffolk County Human Rights Commission
- Westchester Human Rights Commission
Please Note: The state laws summaries featured on this site are for general informational purposes only. In addition to state law, certain municipalities may enact legislation that imposes different requirements. State and local laws change frequently and, as such, we cannot guarantee the accuracy or completeness of the information featured in the State Laws section. For more detailed information regarding state or local laws, please contact your state labor department or the appropriate local government agency.