First Department Holds That New York’s “Conviction Discrimination” Law Does Not Protect Employee Where Conviction Occurs During Employment

In Martino v. Consolidated Edison Co. of N.Y., Inc., 105 AD3d 575 (App. Div. 1st Dept Apr. 18, 2013), the First Department held that New York’s “conviction discrimination” law (NY Correction Law Article 23-A, §§ 750-755) does not protect an employee from discipline/termination due to convictions and arrests incurred while they are employed.

The court explained:

Defendant … terminated plaintiff from his position as a “project specialist” based on a conviction, and a subsequent arrest, for driving while intoxicated, unrelated to his job duties. Plaintiff alleges that his termination violated Correction Law article 23-A (Correction Law §§ 750-755), which prohibits “unfair discrimination” in the employment of persons “previously convicted of one or more criminal offenses” (see Correction Law § 752). He contends that Correction Law § 752 protects current employees against adverse actions by employers based on convictions and arrests incurred while they are employed with the employers.

However, Correction Law § 751 specifically states that “[t]he provisions of this article shall apply . . . to any . . . employment held by any person whose conviction of one or more criminal offenses . . . preceded such employment” (emphasis added; see also L 2007, ch 284; Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 284). Because plaintiff’s conviction, and an additional subsequent arrest, occurred when he was already employed by Consolidated Edison, they do not provide a basis for a claim under Correction Law article 23-A.

The court therefore unanimously affirmed the lower court’s order granting defendant’s motion to dismiss plaintiff’s complaint alleging wrongful termination under CPLR 3211(a)(7).

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