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ACDs Now Off Limits in New York Hiring and Employment Decisions

By Christopher McNerney

The laws in New York and elsewhere throughout the country have come a long way in recent years when it comes to protecting job applicants from employment discrimination based on criminal history. "Ban the box" laws and ordinances facilitate opportunities for tens of thousands of workers who used to pay an ongoing price for transgressions that they paid for long ago.

But a candidate's prior interactions with the criminal justice system can be much more nuanced than a conviction, plea, or acquittal. Recent changes to New York law now address one such overlooked nuance: cases in which a court issues "an order adjourning the criminal action in contemplation of dismissal" (ACD).

How ACDs Work in New York

In 2017, almost 80,000 criminal cases in New York State were dismissed after the entry of an ACD, a legal mechanism that New York criminal courts use to dismiss and seal charges, contingent on a defendant practicing "good behavior" for up to six months or one year. An ACD is neither an admission of guilt, nor is it a plea agreement or conviction. Nevertheless, the nature of an ACD is such that criminal charges against a defendant technically remain pending and are visible to the public long after the case has been concluded as a practical matter and will ultimately be sealed.

Prior to amendments to the New York Human Rights Law passed in May 2019, job applicants and employees with a pending ACD found themselves subject to widespread discrimination in hiring and employment, even though they were guilty of no crime. Now, New York law provides that employers may not ask about, make any inquiries about, or act adversely to any individual based on any arrest or criminal accusation that was followed by an ACD, closing a significant loophole in the law.

Additionally, as of July 11, 2019, New York employers need to explicitly notify job applicants that they should not disclose information about any pending criminal cases for which the applicant received an ACD that has not been revoked.

Outten & Golden: Protecting the Rights of Workers

While this change to the law is unquestionably a positive development, it doesn't mean that all employers will comply with its requirements, nor does it guarantee that applicants or employees won't still face discrimination because of their backgrounds. When that happens, the discrimination and harassment attorneys at Outten & Golden stand ready to help. If you have questions or concerns about employment discrimination, please contact us today.