Petit Larceny Conviction Should Not Have Barred Employment as School Bus Attendant; Correction Law Article 23-A Factors Applied

In Matter of Boone v New York City Dept. of Educ., 2016 NY Slip Op 26240 (Sup. Ct. NY Cty. July 12, 2016), the court held that a prior conviction for petit larceny should not have barred an employee’s attempt to become a school bus attendant. The court granted the petitoner’s CPLR Article 78 petition, finding that the DOE’s decision was arbitrary and capricious.

This decision reviews the law and underlying policy relating to employment discrimination based on prior convictions, as codified in NY Correction Law Article 23-A (NY Correction Law § 751-755).

The law:

Article 23—A of the Correction Law, enacted in 1976, attempts to eliminate the effect of bias against ex-offenders by imposing an obligation on employers and public agencies to deal equitably with them by setting out a broad general rule that employers and public agencies cannot deny employment or a license to an applicant solely based on the applicant’s status as an ex-offender. But the statute recognizes exceptions either where there is a direct relationship between the criminal offense and the specific license or employment sought (Correction Law § 752 [1]), or where the license or employment would involve an unreasonable risk to persons or property (Correction Law § 752[2]). …

Applying the law, the court held that the DOE “arbitrarily and capriciously concluded that the crime and facts surrounding petitioner’s plea bore a ‘direct relationship’ to the license’s requirement of working with children”, that it “arbitrarily and capriciously found that permitting petitioner to serve as a School Bus Attendant would pose an unreasonable risk”, and that “[b]y failing to adequately address and consider the factors enumerated in Correction Law § 753, DOE overlooked the bearing, if any, that petitioner’s criminal history potentially could have had on her ability to perform the specific duties and responsibilities needed for the position of School Bus Attendant.”

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