Legislative Memo: Arrest Records

This bill would permit the City of New York to inquire into the arrest records of current employees when those employees are transferred to another agency because of a merger or other reassignment of agency functions. It would also lift the ban against taking adverse employment action against those employees on the basis of that arrest record.

The bill would apply to employees transferred “from positions or titles classified as non-sensitive to those classified as sensitive,” as a result of a reassignment of their duties from one agency to another. The bill offers no definition of the terms “sensitive” and “non-sensitive.”

Under existing law, it is an unlawful discriminatory practice to inquire about, or to take adverse employment action against, any person on the basis of an arrest or accusation that was terminated in favor of the accused. The law also protects against discrimination in licensing or providing credit to such persons. There are presently two exceptions to these provisions: licensing of deadly weapons, and applications for employment as a police officer or a peace officer.

This bill would go much farther in allowing an exception for a current employee whose position becomes classified as sensitive as a result of a merger or reassignment even if he or she is still performing the same duties. Such an employee could then be subjected to inquiry about his or her arrest record and possibly to adverse action. As drafted, the bill would technically also permit discrimination against such employees in licensing and credit applications.

A wrongful arrest by itself can be a devastating experience. If that arrest can then be used to deny employment, credit, or licenses the result can be a permanent barrier to a person’s ability to function and succeed in society. Even if you accept that such an arrest may properly be considered in an application to serve as a police officer, this bill goes much further than merely, as the sponsor’s memo claims, closing a “loophole” because an employee assigned to the police department is considered a transfer rather than a new hire.

First, in failing to define sensitive and non-sensitive positions, the bill could apply to an employee whose duties remain the same but whose position is reclassified as sensitive. If, given the nature of the job responsibilities, an inquiry into dismissed arrests at the time of hiring is not considered appropriate under current law, such an inquiry is even less appropriate as a result of a transfer. Second, there is a fundamental difference between requiring this information at the time of a new application, and requiring it from a current employee who has an employment history with the City.

With a current employee, the City has information far more probative of that person’s abilities than any dismissed arrest could provide. Finally, this bill could result in people losing their jobs. Even the existing exception for police officers applies only to applications for employment: it does not permit adverse action on the basis of a past arrest record for current employees.

An arrest record is not a criminal record. Those who are arrested and have the accusation dismissed, or who are acquitted, are innocent in the eyes of the law. Their jobs should not be placed in jeopardy because “fiscal conservation” has caused the merger of two city agencies.

The NYCLU opposes passage of this bill.