Seyfarth Synopsis: The U.S. Virgin Islands and Westchester County, New York have enacted legislation which brings these jurisdictions into the growing “Ban the Box” trend.

UPDATED: The certified version of the Westchester County, New York ordinance requires the written Article 23-A analysis be provided to applicants only upon request and no longer requires a hold of the position for 3 days.

The U.S. Virgin Islands

The U.S. Virgin Islands enacted legislation limiting the use of criminal records in hiring practices by public and private employers of all sizes. As of November 10, 2018, Act No. 8134 prohibits employers from asking an applicant for employment to disclose, through any written form or orally, information concerning an arrest or detention that did not result in a conviction; “a referral to, or participation in, any pretrial or post trial diversion program;” or “a conviction that has been judicially dismissed or ordered sealed pursuant to law.” Nor may an employer seek such information from any source whatsoever, and/or use such information as a factor in determining any condition of employment, including “hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment.”

The statute specifically permits an employer to inquire about an arrest for which the applicant is out on either his or her own recognizance or on bail. The law further permits an employer at a health facility (as defined under applicable Virgin Islands law), from inquiry with respect to arrests for violations of certain territorial laws for applicants seeking positions with regular access to patients or with access to drugs and medications.

The statute does not apply if “state or federal law requires the applicant to be rejected based upon criminal history;” “the employment requires a satisfactory criminal background as a bona fide occupational position or a group of employees;” “a standard fidelity or equivalent bond is required and a conviction of one or more specified offenses would disqualify the applicant from obtaining such a bond;” or “the employment is within a facility that provides programs, services, or direct care to minors or vulnerable adults including the educational system or child care.”

The statute permits applicants aggrieved by a violation of the law to recover the greater of $200 or actual damages, plus costs and attorneys’ fees, as well as subjects violating employers to a criminal fine of up to $500 or imprisonment of up to six months.

Westchester County, New York

On or about March 3, 2019, the Westchester Ban the Box Law will take effect, prohibiting discrimination based on an individual’s arrest record or criminal conviction. Specifically, employers with more than four employees are barred from making inquiry (in writing or otherwise), or making any statement related to, a criminal conviction or arrest record of any person in connection with an application for employment until after submission of an employment application.

Additionally, prior to taking any adverse employment action based on an applicant’s criminal history, the employer must perform a written analysis of the applicant’s criminal record and other factors under Article 23-A of the New York State Correction Law. The analysis may be requested by the applicant, and if requested, the employer must provide a written statement setting forth the reasons for such denial pursuant to Article 23-A. The statute allows employers to still take adverse action against any employee or deny employment to an applicant for “reasons other than such employee’s or applicant’s arrest or criminal conviction record.”

The statute does not apply to “any actions taken by an employer pursuant to any state, federal or County law that requires criminal background checks for employment purposes or bars employment based on criminal history.”

The statute allows for a private right of action, allowing aggrieved individuals to recover compensatory damages, including but not limited to, actual damages, back, pay, front pay, mental anguish and emotional distress, as well as actual expenses reasonably incurred and reasonable attorney’s fees. For willful, wanton, malicious violations, punitive damages are available, not to exceed more than $10,000.

Outlook for Employers

Employers in the U.S. Virgin Islands and Westchester County, New York should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law. Employers who operate in multiple jurisdictions should particularly review any standardized forms that may be in use in multiple jurisdictions. Covered employers also should ensure that all hiring and recruiting personnel are aware of “ban the box” laws -- and whether they apply to them. Employers with questions regarding “ban the box” should consult with counsel.