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For more than two decades, civil rights groups across the country, in an effort to improve the job prospects for ex-offenders, have lobbied local and state governments to “ban the box”—a reference to the removal from employment applications of the box to be checked if the applicant has a criminal record. To this end, New York’s three largest cities—Buffalo, New York City and Rochester—have all enacted legislation prohibiting employers from asking applicants about their past criminal record on an employment application. Generally, employers subject to such laws are only permitted to ask about an applicant’s criminal record further on in the hiring process such as, for the New York City law, after a conditional offer of employment has been made.
If your company operates in any of these three cities and your application still seeks information about an applicant’s prior criminal record, you may want to sit up and take notice. The “ban the box” movement recently made headlines by virtue of two public settlements orchestrated by Eric T. Schneiderman, Esq., the New York state attorney general, and two national retail chains, Big Lots Stores and Marshalls, regarding those companies’ employment applications.
Despite the well-publicized implementation of such laws, an investigation by the Civil Rights Bureau of the Office of the Attorney General found that both Big Lots Stores and Marshalls distributed employment applications that made inquiries into the criminal history of prospective applicants seeking employment at their Buffalo stores. “Obtaining meaningful employment is often the most crucial step toward reducing the chances of recidivism among formerly incarcerated persons,” said Schneiderman. “That is why my office is committed to breaking down barriers that impede rehabilitation, especially those that prevent fair access to employment.”
The negotiated conditions of the settlements with these companies are significant. For example, Big Lots Stores agreed to pay a monetary penalty of $100,000 and Marshalls agreed to pay $95,000. In addition, both companies agreed to take steps to ensure that their non-compliant employment application will not be made available to prospective applicants. Finally, the retailers agreed to make affirmative efforts to recruit applicants with a criminal background through an organization which specializes in training formerly incarcerated individuals. Significantly, while only prohibited in certain locations, both companies have further agreed to remove criminal record inquiries from employment applications used in all of their New York state stores.
Given these stiff penalties, employers operating in Buffalo, New York City and Rochester should learn from the examples being made of such companies and ensure that they do not wind up on the wrong side of an enforcement proceeding or lawsuit. Accordingly, companies subject to such laws should take this opportunity to review their employment applications, as well as their interviewing and hiring policies, practices and procedures, to ensure compliance with these local laws that “ban the box.”
Christopher G. Gegwich and Alexander Gallin are attorneys in the Long Island, N.Y., office of Nixon Peabody. Republished with permission. © 2016 Nixon Peabody. All rights reserved.
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