Another New York Locality Bans the Box

Seyfarth Synopsis: On April 27, 2020, the Suffolk County Legislature filed with the Secretary of State an amendment to the county’s Human Rights Code to include a new “Fair Employment Screening” section. As a result, effective August 25, 2020, Suffolk County, New York employers with 15 or more employees will be restricted in their ability to make pre-employment inquiries about an applicant’s criminal history. Because other New York cities and counties have enacted similar laws, such as in New York City, Buffalo, Rochester, and Westchester County, employers operating in the Empire State should consider reviewing their hiring practices to ensure compliance in all jurisdictions.

Coverage

The Fair Employment Screening Law defines “employer” to mean Suffolk County or “any person, partnership, corporation, labor organization, not-for-profit, or association having fifteen or more employees.” “Employment” is broadly defined to mean “an occupation, job, work for pay, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary or other employment agency; or any form of vocational or educational training with or without pay.” In other words, the law is likely intended to cover independent contractors. It does not include employment by any governmental law enforcement agency.

Prohibitions

The law states that covered employers must wait until after an application is submitted and an initial interview has taken place to inquire about or consider an applicant’s conviction history. Specifically, employers located within Suffolk County may no longer:

• Ask questions regarding or pertaining to an applicant’s prior criminal conviction on any preliminary employment application.
• Make any inquiry regarding or require any person to disclose or reveal any criminal conviction during the application process, which begins when the applicant inquires about the employment sought and ends when the employer has accepted an employment application.
• Make any inquiry regarding or require any person to disclose or reveal any criminal conviction against the person before a first interview, which means “any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant’s qualifications.” If the employer does not conduct an interview, the employer must notify the applicant whether a criminal background check will be conducted before employment is to begin.

The law defines “conviction” broadly to mean “any sentence imposed by a court of competent jurisdiction arising from a verdict or plea of guilty, including a sentence of incarceration, a suspended sentence, a sentence of probation, an unconditional discharge, or diversion program.”

Article 23-A Individualized Assessment

The law reminds employers of their obligation under Article 23-A of the New York Correction Law to conduct an individualized assessment of any potentiality disqualifying conviction. On this point, employers may only reject an applicant with a conviction based on a determination that the conviction bears a direct relationship to the duties and responsibilities of the position sought, or that hiring would pose an unreasonable risk to property or to the safety of individuals or the general public. This requires consideration of the following factors:

(a) the public policy of the state of New York to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

(b) the specific duties and responsibilities necessarily related to the license or employment sought or held by the person;

(c) the bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

(d) the time which has elapsed since the occurrence of the criminal offense or offenses;

(e) the age of the person at the time of occurrence of the criminal offense or offenses;

(f) the seriousness of the offense or offenses;

(g) any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

Exceptions

An employer hiring for licensed trades or professions, including positions such as interns and apprentices for such licensed positions, may ask applicants the same questions asked by the trade or professional licensing body in accordance with New York State law. Further, an employer hiring for positions where certain convictions or violations are a bar to employment in that position under New York State or federal law are not prohibited from asking questions about those convictions or violations.

In addition, the prohibitions in the law do not apply:

• if the inquiries or other prohibitions in the law are specifically authorized by any other applicable law;
• to the Suffolk County Police Department or the Suffolk County Department of Fire, Rescue, and Emergency Services, or to any other employer hiring for “police officer” and “peace officer” positions, as defined by Criminal Procedure Law 51.20 and 52.10;
• to any public or private school; or
• to any public or private service provider of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled.

Enforcement

An aggrieved individual may bring a civil action or proceeding against an employer for violating the law for injunctive relief, damages, and other appropriate legal or equitable relief. If successful, the aggrieved individual may be awarded reasonable attorney’s fees at the court’s discretion.

Any person or organization, whether or not an aggrieved party, may file with the Human Rights Commission a complaint alleging a violation of the law. Upon certification by the Director of the Commission that there has been an affirmative finding of probable cause of a discriminatory practice, the Director may request the Commission to commence an action against the accused party, in a court of competent jurisdiction for civil penalties or damages.

Recommendations for Employers

Covered employers hiring for positions located in Suffolk County, New York should consider:

• Revising their employment applications to remove any inquiry about criminal history.
• Modifying their hiring practices to delay any inquiry about criminal history until the appropriate time period, as applicable. Note that while New York City is the only jurisdiction in New York that requires the employer to wait until after a conditional offer to inquire about criminal history, nationwide employers should consider adopting this practice in all jurisdictions.
• Creating a stand-alone criminal history question to present to applicants at the appropriate time, which requests appropriate self-disclosure of criminal history.

Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.