by Edward O. Sweeney
Rochester, New York, will become the latest city to restrict employers’ ability to ask applicants about their criminal history when its ban-the-box ordinance takes effect November 18.
Since many employers are hesitant to hire applicants with criminal histories, states and cities have begun passing laws that restrict employers from including a check box on applications requiring applicants to disclose arrests and convictions.
Rochester’s ordinance, which is similar to Buffalo’s 2013 law, broadly prohibits public- and private-sector employers from inquiring into applicants’ criminal convictions on job applications or during the initial interview. Employers must wait until after the initial interview to conduct a criminal background check on an applicant.
Under Rochester’s law, the “application process” begins when an applicant inquires about employment and ends when an employer conducts an initial interview or makes a conditional offer of employment. If an employer doesn’t conduct an interview, it must inform the applicant of whether a criminal background check will be conducted before employment begins.
Covered employers include (1) the city of Rochester, (2) vendors that contract with the city, (3) employers that have employees in positions for which the primary workplace is in Rochester, and (4) temporary, job placement, referral, and other employment agencies that participate in hiring for positions for which the primary workplace is in Rochester.
The law doesn’t apply to employers with fewer than four employees; employers hiring for licensed trades or professions, including interns and apprentices for licensed positions; or employers hiring for positions in which certain convictions are a bar to employment under state or federal law. Also, employers hiring for licensed trades or professions may inquire about applicants’ criminal convictions if the inquiry is required by a licensing authority or by state or federal law.
The law is intended to protect all applicants seeking paid work, including applicants seeking temporary, seasonal, contract, and contingent work and work obtained through an employment agency.
The law has narrow “public safety” exceptions. It doesn’t apply to applicants seeking positions in Rochester’s police or fire departments or to employers hiring for “police officer” or “peace officer” positions as defined by Criminal Procedure Law § 1.20 and § 2.10. Similarly, the ordinance doesn’t apply to criminal conviction inquiries specifically authorized by other laws.
Rochester employers should review their applications and hiring procedures and shouldn’t ask about criminal convictions on applications or during first-round interviews. Wait until the first round of interviews is complete before running criminal background checks on applicants.
For more information on the new law, see the September issue of New York Employment Law Letter.