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Do you comply with the new ban-the-box law?

Rochester Business Journal
June 27, 2014

On May 22, Rochester became the seventh city to “ban the box.” The “box” is the single check box on an employment application inquiring about an applicant’s criminal history. Effective Nov. 18, 2014, most Rochester public and private employers must comply with a new ordinance that restricts the timing of pre-employment inquiries about a candidate’s criminal history and prohibits using the criminal history “box” on employment applications.

The ban-the-box movement recently has made significant inroads across the country. Laws requiring both public and private employers to eliminate the box have been approved in Baltimore, Buffalo, Newark, Philadelphia, San Francisco and Seattle, along with four states: Massachusetts, Minnesota, Rhode Island and Hawaii. Numerous other jurisdictions have enacted similar laws that are applicable to public employers only.

Both public and private employers in Rochester must now become familiar with the nuances of the city’s ban-the-box ordinance. Moreover, if they have employees in any of the other jurisdictions with similar legislation, they should be aware of the differences and adjust their practices accordingly.

Compared with other jurisdictions, Rochester has enacted legislation that takes a middle-of-the-road approach to the timing of inquiring about a criminal conviction. The local ordinance prohibits employers within city limits from inquiring about or requiring any person to disclose information about a criminal conviction until after the initial interview. If the employer does not conduct an interview, the employer must inform the applicant whether a criminal background check will be conducted and wait until after it has extended a conditional offer of employment before conducting a criminal background check or inquiring into the applicant’s criminal conviction history.

By contrast, ban-the-box laws in Hawaii, Newark and Baltimore are stricter, forbidding inquiries into criminal history before an employer has made a conditional offer of employment. The other jurisdictions are less strict than Rochester, since they allow an inquiry before or during the initial interview. Buffalo, Minnesota and Rhode Island permit inquiries during the first interview, and Massachusetts and Seattle permit them after the initial application.

Compared with other jurisdictions’ ban-the-box laws, Rochester’s ordinance is more aggressive in its coverage. It applies to any private employer within the city of Rochester that has four or more employees. In contrast, San Francisco’s ordinance applies to employers with 20 or more employees, Buffalo’s ordinance applies to employers with 15 or more, and the Baltimore and Philadelphia ordinances apply to firms with 10 or more employees. Rochester’s ordinance also applies within the city itself and to any of its vendors, contractors or suppliers, even if those entities are outside the city limits.

Some Rochester employers are excluded from the law’s purview. For example, the ordinance does not apply to employers that are authorized by another law or by a licensing authority to inquire about criminal convictions. It also does not apply to applicants for positions in law enforcement or to employers hiring for positions where certain convictions are a bar to employment under New York or federal law. Unlike the Baltimore and Buffalo laws, however, the Rochester ordinance does not expressly exempt employers that serve children or physically or mentally disabled adults.

Failure to comply with the new ordinance may result in onerous liabilities. Unlike many other ban-the-box laws, the Rochester ordinance confers a private right of action on aggrieved persons, who may sue employers directly for injunctive relief, damages or other appropriate relief. In addition, Rochester’s corporation counsel may bring an action against an offending employer and seek a $500 penalty for the first violation and $1,000 for each subsequent violation.

The Rochester ordinance is only one of several laws that protect ex-offenders. Indeed, the ordinance expressly incorporates Article 23-A of the New York State Correction Law, which prohibits employment discrimination against ex-offenders and requires employers to consider a list of factors before declining to employ them. The ordinance also refers to New York laws that prohibit employers from inquiring about youthful offender, sealed or expunged convictions.

Employers in the city of Rochester should take the following actions:

 Remove any questions about criminal convictions from applications for jobs in the city.
 Review hiring procedures to delay any inquiry about criminal convictions until after an initial employment interview has been conducted and, if no interview is conducted, ensure there is no inquiry about criminal convictions until after a conditional offer of employment has been made.
 Provide training to employees who conduct job interviews or are involved with hiring and personnel decisions.
 Consider whether the employer has employees in any other jurisdiction with similar legislation, and adjust local practices accordingly.

Trent Sutton is the office managing shareholder in the Rochester law office of Littler Mendelson. Jessica Pizzutelli, an associate in the Rochester office, co-authored this article.

6/20/14 (c) 2014 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email service@rbj.net.


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