“I am applying to a popular supermarket in Geneva, New York. On the job application, can I say ‘never been arrested for a felony’, if my misdemeanor is going to be sealed in a 2 weeks?”

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Under New York law, a person cannot be denied employment based on the person’s past conviction of one or more criminal offenses unless there is a direct relationship between the criminal offense and the employment sought, or there would be an unreasonable risk to property, specific persons, or the general public.

In New York State, there is substantial legal precedent finding New York employers may terminate employment based on an employee’s failure to disclose a criminal record truthfully and completely. However, an employer in New York cannot terminate employment based on the criminal record itself.

In these kinds of cases, typically the court applies a “burden-shifting framework.” This simply means, first, the Plaintiff must show he or she is a member of a protected class, that he or she was actively or constructively discharged, that he or she was qualified to hold the position, and that the discharge occurred under circumstances giving rise to an inference of discrimination.

If the Plaintiff meets this threshold, under New York law, the burden “shifts” to the employer to submit evidence that it had a legitimate, non-discriminatory reasons for terminating employment.

Finally, if the employer meets the burden, the burden shifts a final time to the Plaintiff who then must show the “non-discriminatory” reason asserted, is a mere pretext. In other words, the reason alleged by the employer is not the real reason the employment was terminated.

While all of this is interesting (to me at least), it probably is not relevant in the case above. Nevertheless, with slightly different facts it certainly could be relevant. The reason, however, it is most likely not relevant is because it sounds like you were arrested for petty theft (“an unlawful taking of property or services valued at no more than $1,000”) which, in New York State, is a misdemeanor, as opposed to a felony. For this reason, if you are being asked to disclose any arrests for a felony, you could truthfully answer in the negative.

Again, I am not sure about the specific background facts, so it is difficult to provide any sort of reliable answer here. I highly recommend that you consult an Attorney who is licensed to practice in the State of New York.

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