New York Pre-Employment Inquiries (Interviewing) laws & HR compliance analysis

New York Pre-Employment Inquiries (Interviewing): What you need to know

The New York Human Rights Law prohibits questions on application forms or in interviews that express any limitation, specification, or discrimination as to age, race, creed, color, national origin, military status, sex (including gender identity and transgender), sexual orientation, disability, predisposing genetic characteristics, marital status, or domestic violence victim status (NY Exec. Law Sec. 296 et seq.). The Law covers employers with four or more employees.
Arrests and convictions. It is unlawful for an employer to use an application form or otherwise make any inquiry about certain arrests and criminal convictions (NY Exec. Law Sec. 296(16)). The restrictions include inquiries about:
• An arrest that is not pending and did not result in a conviction
• A youthful offender conviction
• A conviction record that has been sealed by the court
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State law also prohibits employers from discriminating against an applicant or employee based on a criminal conviction unless there is a “direct relationship” between the criminal offense and the specific opportunity or job in question (NY Correction Law Sec. 750). “Direct relationship” means that the nature of the criminal conduct for which the person was convicted has a direct bearing on the person's fitness or ability to perform one or more of the duties or responsibilities necessarily related to the opportunity or job. The law covers all public employers and private employers with 10 or more employees.
Acquired Immunodeficiency Syndrome (AIDS) policy. AIDS is a disability under the Human Rights Law. Testing for the human immunodeficiency virus (HIV) requires informed consent, and the Law protects the confidentiality of results (NY Pub. Health Law Sec. 2780).
Activities outside work.

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