Removing barriers to employment for people with criminal records has been a topic highly debated and actively legislated. Twelve states and over 60 cities and counties currently embrace “Banning the Box”, which removes one question from hiring-related forms – the query about past criminal history. Back in 1998 Hawaii got the movement started by being the first state to adopt the policy of removing conviction questions from job applications. Most recently, Rochester New York enacted a “Ban the Box” ordinance, which restricts the timing of criminal history inquiries during pre-employment. Rochester is the second city in New York, after Buffalo, to address the issue and enact such legislation.
Before we take a closer look at the legal requirements under the Rochester ordinance a list of the states that have legislated this topic is provided.
- California (Mandatory posting requirement effective August 13, 2014 for San Francisco employers with 20+ employees)
- Colorado
- Connecticut
- Delaware
- Hawaii
- Illinois
- Maryland
- Massachusetts
- Minnesota
- Nebraska
- New Mexico
- Rhode Island
It is important to note that the US Equal Employment Opportunity Commission (EEOC) has released guidance on employment discrimination with respect to criminal records and employer best practices under Title VII. The guidance basically endorses removing the conviction question from hiring forms, click here to read that guidance.
The Rochester New York Ordinance prohibits employers from requiring applicants to divulge criminal conviction information during the application process. Employers in Rochester include the City, its vendors, and any entity that employs four (4) or more persons in any position for which the primary place of work is located within the City, this includes temporary, job placement, referral and other employment agencies. The application process is deemed to begin when the applicant inquires about the employment sought and ends when an employer has conducted an initial employment interview or made a conditional offer of employment. Where an employer does not conduct an interview, he/she must inform the applicant as to whether a criminal background check will be conducted before employment is to begin and then must wait until after it has extended a conditional offer of employment before conducting the check or related criminal history inquiries.
Enforcement under the ordinance authorizes private right of action, where persons who have been unfairly discriminated can bring suit for monetary damages and injunctive or other appropriate relief.
What Should Employers Do?
- Review employment applications and related hiring forms prior to the November 18, 2014 effective date;
- Review and revise hiring procedures (delay criminal conviction inquires until after an interview (face or phone) if no interview is held delay inquires until after a conditional offer is made);
- Ensure compliance with Article 23-A of the New York Correction Law and Fair Credit Reporting Act (Correction Law 23-A is a required employment poster that must be displayed in workplace, reference your New York All-On-One poster from Compliance Poster Company); and if necessary
- Consult with your HR or Legal Departments.