Buffalo Jumps On “Ban The Box” Bandwagon And Restricts Employers’ And Vendors’ Inquiries About Criminal History

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The Mayor’s Office of the City of Buffalo, NY (“City”)  has confirmed that the “ban the box” ordinance passed by the City Common Council on May 28, 2013, has been enacted. The ordinance originally provided that it  would become effective immediately, but an amendment delaying the effective date to January 1, 2014, has been introduced in the Common Council and is expected to be approved shortly. The ordinance, which amends Section 1, Article V of Chapter 154 of the Code of the City of Buffalo, prohibits the City’s vendors and many employers located in the City from inquiring about an  employment applicant’s prior criminal convictions on any employment application or in any other way before the applicant’s first interview. By enacting the ordinance, the City joins more than 50 other states and localities that have passed similar legislation as a means to increase the employment rate of persons previously convicted of a crime. (Click here to see a list). As a result of the new ordinance, all City vendors and covered employers will have to take steps to ensure that they comply with it.
The ordinance covers all employers located in the City, except employers with fewer than 15 employees, public and private schools, and any public or private service provider of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled. The ordinance also does not apply if the conduct it prohibits is “specifically authorized by any other applicable law.” A vendor covered under the ordinance includes “any vendor, contractor, or supplier of goods or services to the City, including vendors located outside the City of Buffalo limits.”
Employment covered by the ordinance’s prohibition on criminal history inquiries is quite expansive and includes "an occupation, vocation, job, work for pay, including temporary or seasonal work, contracted work, contingent  work, and work through the services of a temporary or other employment agency, or any other form of vocational or educational training with or without pay.”
The ordinance does not restrict the kinds of questions employers can ask about convictions or violations, and specifically provides that employers may ask such questions where they would be a bar to employment under New York or Federal law. The ordinance also allows employers hiring for licensed trades or professions to ask applicants the same questions asked by the trade or professional licensing body, in accordance with New York state law.
Employers who violate the ordinance can be sued in court for damages, attorneys’ fees and injunctive relief, which possibly could include a court order directing an employer to hire an applicant. The ordinance also allows any person or organization, whether or not injured by a violation of the ordinance, to file a complaint with the City’s Commission on Citizens’ Rights and Community Relations (“Commission”) alleging a violation of it. If the Commission determines probable cause exists to believe the ordinance has been violated, the City may sue the employer and seek to recover a penalty of $500 for the first violation and $1,000 for each subsequent violation.
As the ordinance only prohibits asking about prior criminal convictions on any employment application, and before the first interview, employers may still ask applicants about prior criminal convictions during an initial interview after the application is submitted or any time thereafter. However, vendors and covered employers who do so must, like all New York employers, also comply with the requirements of New York Correction Law Article 23-A. Article 23-A prohibits an employer from taking adverse employment action based on a prior criminal conviction, such as denying employment,  unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held; or (2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. In determining whether either requirement is satisfied, Article 23-A lists eight factors that must be considered. Failure to consider the eight factors can itself constitute a  violation of Article 23-A. Moreover, employers must post a copy of Article 23-A in the workplace and provide a copy of it to any applicant from whom a background check authorization is obtained. (Click here for a copy).
DOS AND DON’TS
To help ensure compliance with the ordinance when it becomes effective as expected on January 1, 2014, City vendors and covered employers should consider the following options as appropriate:
1.DON’T: Include questions about criminal history on your job application;
2.DON’T: Ask applicants about their criminal history before the first interview
3. DO: Remove questions about criminal history from your application;
4. DO:  If you use the same application for employment in the City and for locations outside of Buffalo, and the application asks about criminal history, include a clear exclusion for those applying for employment in the City and in other localities or states that have “ban the box” laws ( e.g. applicants for City of Buffalo employment do not answer);
5. DO: If you want to inquire about prior criminal convictions for employment in the City, have applicants complete a separate written disclosure statement no earlier than at the first interview;
6. DO: Train those responsible for hiring and interviewing about the requirements of the ordinance and other applicable “ban the box” laws; and
7. DO: Check the laws in the other states and localities where you employ people and consult employment counsel to ensure that you are in compliance with other applicable “ban the box” laws.