Rochester Follows Buffalo’s Lead in Passing “Ban the Box” Legislation

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Employment ApplicationAs detailed in our blog dated September 2, 2013, Buffalo joined numerous local and state jurisdictions in adopting some form of “ban the box” legislation. The City of Rochester has now joined Buffalo to become the second city in New York to approve such legislation. After November 18, 2014, Rochester, its vendors, and entities with four or more employees (Buffalo’s ordinance applies to employers with 15 or more employees) seeking to employ persons within the city must comply with the new ordinance.

More specifically, covered employers will no longer be able to require an applicant to check a box or respond to oral or written inquiries concerning his or her criminal history prior to an “initial employment interview.” The “initial interview” is broadly defined to include “direct contact” with the applicant either “in person or by telephone to discuss the employment being sought or the applicant’s qualifications.” If no interview is conducted, the employer must inform the applicant whether a criminal background check will be conducted before employment is to begin.

Excluded from the ordinance are applicants for positions in the city’s police or fire departments or employers hiring for “police officer” or “peace officer” positions as defined in the § 1.20 or § 2.10 of the Criminal Procedure Law. Employers hiring for licensed trades or professions, such as physicians and attorneys, including interns and apprentices for such positions, are permitted to ask applicants the same questions asked by the trade or professional licensing body pursuant to New York State or federal law.

Similarly, the law does not prohibit employers from inquiring about convictions during the application process when certain convictions are a bar to employment under New York State or federal law. Examples include certain positions in financial institutions covered by the Federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 or under Title 19 of the Federal Deposit Insurance Corporation (FDIC).

Employers who violate this new law may be subjected to a civil action or a proceeding for injunctive relief, damages, or other appropriate relief in law or in equity by a “party aggrieved” within one year of the alleged violation. Reasonable attorneys’ fees may be awarded to the prevailing party at the court’s discretion. Further, the corporation counsel may, at his or her discretion, bring an action to restrain or prevent a violation or a continuance of any violation in a court of competent jurisdiction and seek a penalty of $500 for a first violation and $1,000 for each subsequent violation.

Notwithstanding the above enforcement provisions, covered employers must still comply with Article 23-A of the New York Correction Law and the New York Human Rights Law (N.Y. Exec. Law § 296(15)) when considering an applicant’s prior criminal conviction in determining suitability for employment. Specifically, under the New York Human Rights Law, employers may not deny employment to any individual by reason of “having been convicted of one or more criminal offenses” unless there is a direct relationship between the conviction and the employment sought, or granting or continuing employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Section 753 of the Correction Law lists eight factors that employers must consider in making this determination, including, among others, the specific duties of the position; the bearing, if any, the criminal conviction will have on the person’s fitness or ability to perform the job duties; the age of the person at the time of the conviction; the time that has elapsed since the conviction; the seriousness of the offense; and any evidence of rehabilitation. Failure to consider the eight factors may constitute a violation of Article 23-A. Further, under Section 201-f of the New York Labor Law, employers must conspicuously post a copy of Article 23-A in the workplace where employees will have access to it and, under the Section 380-c of the N.Y. General Business Law, must provide a copy to any applicant subject to a background check.

Recommendations for covered employers:

  • To avoid liability, employment applications should be revised to “ban the box.”
  • Hiring managers should be instructed not to ask about criminal convictions until the applicant is interviewed.
  • When interviews are not conducted, hiring managers should be reminded to inform applicants if a background check is being ordered.
  • Background checks must comply with state and federal EEO laws and the Fair Credit Reporting Act.
  • Hiring managers should review and be familiar with Article 23-A of the Correction Law and the New York Human Rights Law as they relate to prior criminal convictions.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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