Rochester’s “ban the box” ordinance takes effect on Tuesday, November 18, 2014. This ordinance is intended to encourage the hiring of qualified people who are ex-offenders by ensuring that covered employers screen applicants based on their work qualifications, before any consideration of their prior criminal history is made.

Specifically, the ordinance prohibits covered employers from making any inquiry regarding a job applicant’s prior criminal conviction on any initial employment application or prior to the end of the initial application process. For purposes of the ordinance, the “application process” is deemed to begin when the applicant inquires about the employment sought and ends when the employer has conducted an initial employment interview and/or made a conditional offer of employment to the applicant.

Which employers are covered by the “ban the box” ordinance?

The City of Rochester (the “City”), vendors who contract with the City (including vendors located outside the City of Rochester limits), and employers who have employees in any position for which the primary place of work is in the City, as well as, any temporary, job placement, referral, or other employment agencies participating in hiring for such positions, are all covered by the “ban the box” ordinance.

That said, employers with fewer than four employees are not covered by the ordinance. In addition: (1) employers who are hiring for licensed trade or professions, including positions such as interns and apprentices for such licensed positions, may make an inquiry of applicants about prior criminal convictions if the inquiry is required by a licensing authority or by New York State or federal law; (2) employers hiring for positions where certain convictions are a bar to employment in that position, under New York State or federal law, are not prohibited from making inquiries about those convictions during the application process; and (3) the ordinance does not apply to applicants for positions in the City Police Department or the Fire Department, or to any employer when they are hiring for “police officer” and “peace officer” positions.

How is the ordinance enforced?

The “ban the box” ordinance allows an aggrieved person to commence a civil action for injunctive relief and/or damages (including attorney’s fees and costs) within one year of an alleged violation. In addition, the City’s Corporation Counsel has the authority to commence a lawsuit to restrain or prevent any violation of the “ban the box” ordinance or any continuance of any such violation, and may further seek the imposition of a penalty of $500 for the first violation and $1,000 for each subsequent violation.

Are there other laws that employers must comply with?

As indicated above, the ordinance does not prohibit an employer from conducting a background check after a conditional offer of employment has been made and/or after the initial application process has been conducted, including any initial interview. Once the employer has conducted a good faith interview and/or offered the applicant a conditional offer of employment, it can ask the applicant about criminal convictions at that point, or a later stage in the hiring process. However, employers who do so must, like all New York employers, also comply with the requirements of Federal and New York State Fair Credit Reporting Acts and New York Correction Law Article 23-A, as applicable.

For example, Article 23-A of the Correction Law prohibits an employer from taking adverse employment action based on a prior criminal conviction, such as denying employment or withdrawing a conditional offer of 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 which must all be considered prior to reaching any conclusion. These are:

  1. The public policy of New York State is to encourage the employment of persons previously convicted of one or more criminal offenses;
  2. The specific duties and responsibilities related to the employment sought or held by the person;
  3. The bearing, if any, the criminal offense or offenses will have on the individual’s fitness or ability to perform one or more of such duties or responsibilities;
  4. The time which has elapsed since the occurrence of the criminal offense or offenses;
  5. The age of the person at the time of occurrence of the criminal offense or offenses;
  6. The seriousness of the offense or offenses;
  7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and
  8. The legitimate interest of the employer in protecting its property, and the safety and welfare of specific individuals or the general public.

Failure to consider the above 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.

DOS AND DON’TS

To help ensure compliance with the ordinance when it becomes effective on November 18, 2014, covered employers should consider the following options as appropriate:

  1. DON’TInclude questions about criminal history on your job application;
  2. DON’T: Ask applicants about their criminal history until the applicant is interviewed and/or offered a contingent offer of employment;
  3. DO: If you use the same application for employment in the City and for locations outside of Rochester, 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 Rochester employment do not answer);
  4. DO: Revise your hiring procedure to delay any inquiry about criminal convictions until after a face-to-face or telephone interview has been conducted. If no interview is conducted, then you should delay any inquiry about criminal convictions until after a conditional offer of employment has been made.
  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 after the first interview and/or after the conditional offer of employment;
  6. DO: Train those responsible for hiring and interviewing about the requirements of Article 23-A of the Corrections Law, the Federal and New York State Fair Credit Reporting Acts, 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.