Background
Plaintiff is a licensed nurse practitioner who holds a prior felony conviction that was sealed under CPL § 160.59. He applied for a position as an emergency department nurse at Health Alliance Hospital in Ulster County through staffing defendants Envision Physician Services, LLC and Kingston Emergency Medical Associates, PLLC. The employment application prepared by Envision asked: “Have you ever been convicted or plead[ed] guilty to a felony?” Plaintiff answered “No.” The hospital defendants conducted a background check, which disclosed plaintiff’s sealed felony conviction. They then rejected his application — according to the complaint, because of his untruthful response to the felony question.
Plaintiff sued Envision under Executive Law § 296(16), which prohibits certain employers from discriminating against applicants based on specified sealed criminal records. He argued that Envision’s felony question violated the statute. Envision moved to dismiss under CPLR 3211(a)(7), arguing that a generalized question about any felony conviction is not among the specific inquiries prohibited by § 296(16). Supreme Court, Ulster County, agreed and dismissed the complaint against Envision. Plaintiff appealed.
The Court’s Holding
The Appellate Division, Third Department, affirmed the dismissal. The court applied the canon of statutory construction known as expressio unius est exclusio alterius: the inclusion of specific items in a statute implies an intent to exclude items not included. Executive Law § 296(16) contains an “exhaustive list” of specific criminal dispositions and adjudications that employers are prohibited from inquiring about — including sealed youthful offender adjudications, sealed misdemeanor convictions, and arrests not resulting in convictions — but a simple felony conviction (even a sealed one) is not among the enumerated categories.
The court held that this omission was intentional: the Legislature set out a comprehensive list of protected criminal-record categories, and if it had intended to prohibit inquiry into any felony conviction, it would have said so explicitly. The court declined to supply by implication a prohibition that the Legislature chose not to enact. The court further noted that even if Envision’s general felony question could somehow be viewed as implicitly inquiring about CPL § 160.59-sealed convictions, the complaint did not allege that Envision specifically asked about sealed convictions, conducted the background check itself, or took any adverse action based on plaintiff’s sealed conviction — rather, it was the hospital defendants, not Envision, who received and acted on the background results.
Key Takeaways
- Executive Law § 296(16) prohibits specific enumerated inquiries into sealed or protected criminal records — but a generalized question asking whether a job applicant has ever been convicted of or pled guilty to a felony is not among the prohibited inquiries and does not violate the statute.
- Expressio unius: where the Legislature has created a comprehensive list of protected criminal dispositions and omitted felony convictions, courts will not read that omission as an oversight and will not supply the prohibition by implication.
- A staffing agency that passes along an application to a host employer is not liable under § 296(16) for a background investigation conducted by the host employer and adverse employment action taken by the host — the complaint must allege the defendant’s specific conduct connecting it to the violation.
- Applicants with prior felony convictions sealed under CPL § 160.59 remain vulnerable to general felony questions on applications unless and until the Legislature extends § 296(16)’s protections to include that category.
Why It Matters
New York has one of the country’s most robust sealing statutes for prior felony convictions — CPL § 160.59 allows individuals to petition to seal certain prior convictions after a period of law-abiding conduct. But this decision reveals a significant gap in the corresponding anti-discrimination protections: Executive Law § 296(16) does not currently prohibit employers from asking a general felony question that would reveal a sealed conviction through the applicant’s answer (or through a subsequent background check). The practical effect is that CPL § 160.59 sealing does not insulate applicants from routine felony inquiries on job applications.
For employment lawyers and advocates for returning citizens, this decision is a clear signal that reform of § 296(16) — to explicitly prohibit inquiry into CPL § 160.59-sealed convictions — would require legislative action. Healthcare employers and staffing firms can take some comfort from the ruling that a standard background-check question does not trigger § 296(16) liability, but should note that the decision does not address the separate obligations of local NYC Human Rights Law provisions, which may be broader.