On May 22, 2014, one year after the city of Buffalo, NY, passed its ordinance restricting employers’ inquiries into criminal history, its neighbor across the Niagara isthmus, Rochester, NY, enacted a similar “ban-the-box” law. Rochester’s legislation comes just one week after Baltimore, MD, enacted its own ban-the-box law, suggesting that the “ban-the-box movement” is maintaining its steam and that municipalities will remain key players in the movement. Now, a total of seven cities – Baltimore (MD), Buffalo (NY), Newark (NJ), Philadelphia (PA), Rochester (NY), Seattle (WA), and San Francisco (CA) – and four states – Hawaii, Massachusetts, Minnesota, and Rhode Island – have banned the box for private employers. Many other jurisdictions are considering such legislation for private employers and already have enacted such legislation for public employers and their vendors.
Ban-the-box laws impose a variety of substantive and procedural restrictions on employers’ inquiries into criminal history during the hiring process. Rochester’s ordinance falls into the middle of the pack in terms of how strictly it regulates these inquiries. Much of the language is copied verbatim from Buffalo’s ordinance. But employers in the western New York region should take note: Rochester’s ordinance is tougher on employers in four significant ways.
1. Timing. Like the Buffalo ordinance, the Rochester law prohibits employers from inquiring into or asking job applicants to disclose their criminal convictions before the first interview. However, in contrast to Buffalo, Rochester also prohibits questions about convictions during the interview.
2. Exceptions. Employers in both cities may conduct inquiries into criminal history required by licensing authorities or state or federal law. Both cities also make exceptions for applicants for law enforcement roles. Rochester does not, however, grant the exemption included in Buffalo’s ordinance for schools and for employers that provide services to children, the elderly, and the physically or mentally disabled.
3. Covered employers. Rochester targets a broader cross-section of employers in another way. Whereas Buffalo’s ordinance applies to employers with 15 or more employees, Rochester’s ordinance applies to employers with only four or more employees.
4. Convictions. Rochester’s ordinance forbids employers from inquiring into certain classes of convictions, including juvenile offenses and sealed and expunged convictions. Buffalo’s ordinance has no such restrictions. However, Rochester’s ordinance mirrors New York state law in this regard, so the same restrictions would apply indirectly to Buffalo employers.
Both laws layer on top of New York State Correction Law Article 23-A. That law prohibits employers from taking an adverse action against a job applicant based on a criminal offense unless the offense has a direct relationship to the job. In determining whether there is such a direct relationship, employers must consider the following factors:
- The specific duties of the job;
- The bearing of any criminal offense on the ability perform these duties;
- The time that has elapsed since any criminal offenses;
- The job applicant’s age at the time of any criminal offenses;
- The seriousness of criminal offenses;
- The public policies favoring the employment of ex-convicts;
- Rehabilitation and good conduct; and
- The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
The enforcement provisions in the Buffalo and Rochester ordinances are almost identical. Aggrieved individuals can sue for injunctive relief, damages, or “other appropriate relief in law or equity.” In addition, the court may award a prevailing plaintiff attorneys’ fees and costs. Each ordinance grants enforcement authority to its city’s Corporation Counsel, who can seek fines of $500 for the first violation and $1,000 for subsequent violations.
Recommendations for Employers
To comply with the Rochester ordinance, which will go into effect on November 18, 2014, covered employers hiring for positions located in Rochester should consider taking the following steps:
- Review their employment applications to remove questions about criminal history;
- Revise their hiring procedures to delay any inquiry about criminal history until after the initial interview.