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Can an employer terminate me for not disclosing an arrest that was dismissed and no conviction undertaken (NYC).

Brooklyn, NY |

I'm employed in NYC and was called by the HR dept. about an issue that came up on a fingerprint scan. I was arrested in another state and the case was dismissed. When filling up the employment app. I did not disclose this as I was under the impression that in NYC , employers were barred from asking about arrests that led to no conviction. The HR supervisor stated that she needs records and that it looked like I lied on my application and this was grounds for dismissal. What are my rights here? I thought that when they do a background check they are able to see whether the case was dismissed vs convicted.

Thanks in advance

Attorney Answers 2


  1. Under NYS Executive Law 296.16, an employer may not ask about, or take adverse employment action based upon, an arrest where there was no conviction. This does not apply to arrests related to charges that are pending at the time of application. There is also an exception to this rule for application for employment as a police officer. The rule is same under Federal Law, except arrests can be inquired about if the arrest relates to conduct that is job-related . So, were the charges still pending when you completed the application? Is this a police officer job? Were the charges related to the type of job your applied for (i.e., charged with DWI but applying to be a taxi driver; charged with embezzlement but applying to be a bank teller; charged with child endangerment but applying to be day care worker, etc.) ? If you answer no to all of the foregoing, you may have a case and you should contact one of us who offers free consultations.


  2. Attorney Lyder is correct, certainly. There may be an additional issue, as your employer may claim that they are terminating you for lying on your application.

    This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.

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