NY: Rochester Is Second New York City to ‘Ban the Box’ in Hiring

By Rosemarie Lally Nov 21, 2014

Rochester, N.Y., joined Buffalo in adopting “ban the box” legislation, becoming the second city in the state to approve such legislation. The Rochester ordinance, which applies to employers with four or more employees, was effective Nov. 18, 2014.

The new law – Ordinance No. 2014-155 – prohibits covered employers from requiring applicants to respond to oral or written inquiries concerning their criminal history during the application process, which begins 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. “Interview” is defined “as any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicants’ qualifications.”

If an interview is not conducted, the employer must inform the applicant whether a criminal background check will be conducted before employment is to begin.

Under the legislation, employers are prohibited from asking applicants at any time to disclose information about an arrest that resulted in a youthful offender adjudication or that was processed as a juvenile delinquency proceeding in family court, unless the inquiry is specifically required or permitted by New York State or federal law.

Applications for employment by the city police or fire department or for any position classified as a police officer or “peace officer” are not covered by the legislation. Further, employers hiring for licensed trades or professions, such as attorneys or physicians, may ask applicants about prior criminal convictions if an inquiry is required by the licensing authority or by New York State or federal law. Similarly, employers hiring for positions where certain convictions are a bar to employment under state or federal law are allowed to ask about convictions during the application process.

The legislation doesn’t prohibit an employer from withdrawing a conditional offer of employment for any lawful reason, including the determination that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position applied for or that hiring would pose an unreasonable risk to property or to the safety of individuals or the general public.

Employers that violate the law may be subject to a civil action or a proceeding for injunctive relief, damages, or other appropriate relief in law or in equity brought within one year of the alleged violation. Costs and reasonable attorneys’ fees may be awarded to the prevailing party. Corporation counsel may bring a court action to restrain or prevent a violation or continuance of any violation and may seek a penalty of $500 for a first violation and $1,000 for each subsequent violation of the law.

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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