On April 27, 2020, Suffolk County in New York enacted a “Ban the Box” Law (the “Law”), Local Law No. 14, with the New York Secretary of State that restricts an employer located within Suffolk County with 15 or more employees from making pre-employment inquiries into an applicant’s criminal conviction history. According to the Suffolk County Legislature, the Law is intended to improve employment opportunities for individuals with criminal convictions. Buffalo, Rochester, and Westchester County already have similar “ban the box” laws in place that restrict the use of pre-employment inquiries into an applicant’s criminal conviction history at the preliminary stages of the application process. New York City’s Fair Chance Act is more restrictive in that it prohibits an employer from inquiring into a job applicant’s arrest or criminal history prior to extending a conditional employment offer.

The Law becomes effective on August 25, 2020.

Key Aspects Of The Law

The Law prohibits an employer from asking questions regarding or pertaining to an applicant’s criminal convictions during the application process. Under the Law, the application process begins when the applicant inquires about the employment sought and ends when the employer has accepted the employment application. Moreover, the Law defines an applicant as “any person considered or who requests to be considered for employment by an employer,” including temporary or seasonal work, contracted work, contingent work, and work through a temporary staffing agency.

The Law also prohibits an employer from inquiring into or requiring any person to disclose or reveal a criminal conviction against such person before a first interview. If an employer does not conduct an interview, that employer must inform the applicant whether a criminal background check will be conducted before employment is to begin.

If an employer is hiring for licensed trades or professions, such as interns and apprentices, it may ask the same questions asked by the trade or professional licensing body, in accordance with state law.

The Law provides an exception for employers to inquire about a criminal conviction if a criminal conviction would be a bar to employment for that position under federal or state law or if such inquiry is permitted under any other applicable law. Moreover, the Law specifically allows an employer to make an inquiry for a position with any of the following entities:

  • the Suffolk County Police Department, Suffolk County Department of Fire, Rescue, and Emergency Services, or any other “police officer” and “peace officer” position as defined by the Criminal Procedure Law;
  • any public or private school; or
  • 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 Law still requires an employer to follow the provisions of Article 23-A of the New York Correction Law in considering an applicant’s prior criminal convictions in determining suitability. Moreover, pursuant to Article 23-A, an employer may withdraw conditional offers of employment for any lawful reason, including the determination that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position sought, or that hiring the candidate would pose an unreasonable risk to property or to the safety of individuals or the general public.

Under the Law, an aggrieved individual may file a complaint with the Suffolk County Human Rights Commission or a civil action in court for injunctive relief, damages, or any appropriate relief in law or in equity.

Takeaway For Employers

            Employers should review and revise job applications used in Suffolk County to remove questions concerning an applicant’s prior arrests, criminal charges, or criminal convictions. Likewise, employers should also revise their hiring procedures to delay any inquiry about criminal convictions until an initial employment interview has been conducted, or if no interview is conducted, until after a conditional offer of employment has been made.

 


[1] Under Article 23-A, an employer shall consider the following factors in considering a previous criminal conviction in an employment decision: (a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses; (b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person; (c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities; (d) The time which has elapsed since the occurrence of the criminal offense or offenses; (e) The age of the person at the time of occurrence of the criminal offense or offenses. (f) The seriousness of the offense or offenses; (g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and (h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

 

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Putney, Twombly, Hall & Hirson LLP

 

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