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Ban the Box-the latest NYS ordinance

By Ruth Kraft posted 06-21-2015 02:34 PM

  

 For those of you who are readers of my blog, this an advance look at the latest in employment law rules affecting NYC employers.  The tech gurus at Bartlett McDonough & Monaghan are seeking the best and most stable web host for my weekly blog.  We are hoping to go live sometime in July but in the meantime, this subject is too important to keep in the queue.

To be added to my listserv, please email me at: Ruth.Kraft@bmmllp.com.  Thanks!

 Banning the Box is the moniker that the press has assigned to the New York City Fair Chance Act of 2015.  Under the Act, employees are prohibited from inquiring, during the hiring process, about a job applicant’s criminal history before making a conditional offer of employment.  What is the box?  It refers to the check off on many employment applications which inquires as to whether the applicant has ever been convicted of a crime.

Even before the City Council passed the bill, both New York State and City law already prohibited discrimination against job applicants based on prior criminal convictions in the absence of a direct relationship between the offense and the job in question OR hiring the applicant would pose an unreasonable risk to property or the safety of specific individuals or the public. 

What does direct relationship mean?  We have instant clarity from the NYS Correction Law which, in Article 23-A, addresses the licensure and employment of persons previously convicted of crimes.  Eight factors must be considered:

  • Public policy encouraging the licensure or employment of persons previously convicted of criminal offenses;

  • The specific duties and responsibilities related to the employment ;

  • The bearing of the conviction on fitness or ability to perform those duties;

  • The time which has elapsed since the occurrence of the criminal offense(s);

  • The age of the person at the time of the occurrence;

  • The seriousness of the offense;

  • Any information produced by the applicant in regard to rehabilitation and good character; and

  • The legitimate interest of the employer in protecting property, safety and welfare.

As I have written on earlier occasions, New York law also prohibits employers from inquiring about or acting based on an applicant or employee’s prior arrest or criminal accusations that were resolved in his or her favor, resulted in a sealed conviction or were resolved with youthful offender status.  An employer is limited to ultimately inquiring as to current criminal proceedings and convictions.  However, please note that an ACD, adjournment in contemplation of dismissal, remains a plea of guilty to a violation subject to the requirement that the individual not engage in further criminal conduct within one year.  During that year, any subsequent conviction results in vacating the ACD and the imposition of criminal liability at least at the misdemeanor level.  ACDs are particularly tricky and I strongly encourage you not to make employment decisions based on them without first consulting with an employment attorney.

The Ban the Box law is part of a national trend already in place in San Francisco, the District of Columbia, Baltimore, Seattle, Philadelphia, Buffalo and the states of New Jersey, Illinois, Minnesota, and Rhode Island.  Employers with multi-state operations should insure that they are in compliance in all these jurisdictions and note that the trend is expected to expand.

So, turning to the Act, what can’t you do in the interview process prior to a conditional offer:

  • You may NOT ask the applicant about his criminal history;

  • You may NOT search public records and consumer reports that contain criminal background information

If, ultimately, whether during employment or subsequent to the conditional offer, you learn information which causes you to take an adverse employment action, you must comply with a strict notice policy, similar to that under the Fair Credit Reporting Act.  You are required to:

  1. Provide a copy of the inquiry to the applicant;

  2. Perform the eight step analysis listed above and provide a copy of the analysis as well to the applicant;

  3. Afford the applicant a minimum of three business days to respond, during which you must hold the job open for the applicant.

There are limited exemptions including applicants for employment as police officers, certain positions within the city’s Department of Administrative Services (my comment-how convenient when government does not want to hold itself to the standard it imposes on the private sector) or with respect to any position which bars employment based on federal, state or local law.   Some safety sensitive employment positions, involving the public trust, may already bar the hiring of convicted individuals and these statutes would trump Ban the Box.

If you re-use job postings on Craig’s List, other social media or newspapers, then you should review these to insure that they conform to the statute.  And, if you are wondering whether you should move your business someplace else, I honestly can’t fault you!

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