Suffolk County Limits Employer Inquiries About Job Applicants’ Criminal Histories

On April 27, 2020 Suffolk County joined 14 other municipalities across the state of New York in passing legislation that has come to be known colloquially as “Ban the Box.”  Ban the Box legislation limits or bans employer inquiries into the criminal history of an applicant during the hiring process.  The name refers to the common check box on job applications asking whether the applicant has ever been convicted of a criminal offense.  Under New York state law, such inquiries have been curtailed for public employees under New York State Correction Law 23-A, however there is no statewide provision pertaining to private employers.  As a result, private employer screening of job applicants is dictated by a patchwork of county and municipal ordinances.  Currently, five counties, Albany, Dutchess, Tompkins, Ulster and Westchester, as well as nine cities, Buffalo, Ithaca, Kingston, Newburgh, New York, Rochester, Syracuse, Woodstock and Yonkers, have passed local ordinances banning or limiting employer inquiry into an applicant’s criminal history at different stages of the application process.

Suffolk County Local Law No. 14 of 2020 is set to take effect on August 25, 2020, amending Suffolk County Code Chapter 528 with the addition of Section 528-21, establishing “Fair Employment Screening Standards.”  This new protection for applicants affects employers with 15 or more employees.  Employers covered under this law are prohibited from asking questions about an applicant’s history of criminal conviction during what the law deems the “application process” and before an initial interview.  The application process “shall begin when the applicant inquires about the employment sought and shall end when an employer has accepted an employment application.”  As such, this limits an employer from including any inquiry into an applicant’s criminal convictions on any form of application.

Under Article 23-A of the New York Correction Law, public employees throughout the state are protected from inquiry into their past criminal convictions at the initial stages of the job application process.  Local laws extend this protection to private employment, however in both instances there are exceptions.  Under Article 23-A, these exceptions include situations where there is a direct relationship between the criminal offense and the nature of the job that the applicant is applying to.  These laws have gained notice as increasingly high-profile cases are brought in those municipalities across New York State that have implemented Ban the Box laws, particularly in New York City.  Suffolk County’s new law takes a broad view of what qualifies for a conviction, including suspended sentences and diversion programs, as well as a broad definition of employer, defining an employer as “the County or any person, partnership, corporation, labor organization, not-for-profit, or association having fifteen or more employees.”  For candidates trying to re-enter the workforce following a criminal conviction, this is an important step in protecting an individual from discrimination while seeking a job.  Suffolk County has provided a private right of action seeking injunctive relief, monetary damages, and reasonable attorney’s fees, as well as a right to file with the Human Rights Commission.  Unfortunately, the patchwork nature of these laws, the carved out exceptions, and their relatively new nature can make recognizing discrimination difficult, and it is important to consult with legal counsel if you feel you have been discriminated against in violation of these provisions.

If you believe you have been the victim of discrimination based on a past criminal conviction during the job application process, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.