Barclay Damon
Barclay Damon

Legal Alert

Ban the Box Update: Rochester Joins Buffalo in Prohibiting Employers from Making Early Inquiries into Applicants' Criminal History, NYC Considering

Effective November 18, 2014, the City of Rochester will join the growing list of municipalities to “Ban the Box” (that is, the box on many employers’ applications asking if the applicant has ever been convicted of a crime). Rochester’s new ordinance will prohibit most employers from asking about prior criminal convictions until after the initial interview or conditional offer of employment. See Rochester City Code § 63-14(A). The ordinance does not apply to law enforcement, employers with fewer than four employees, or any employer required by law to bar employment of people with certain convictions. See §§ 64-13(E); 64-15(B).

On January 1, 2014, a similar ordinance took effect in Buffalo, New York, banning employers from inquiring about an applicant’s prior convictions, at least prior to the first interview. See Buffalo City Code § 154-27(B). Under the City of Buffalo ordinance, if no interview is conducted, employers must inform applicants whether they intend to conduct a criminal background check before employment begins. See id. Buffalo’s ordinance applies to any person, partnership, corporation, labor organization, not-for-profit, or association having 15 or more employees, except for those required under state or federal law to bar people with certain convictions from employment, police, schools, or organizations that provide direct services for children, young adults, senior citizens, or the physically or mentally disabled. §§ 154-26; 154-28.

New York City is currently considering its own version, called “The Fair Chance Act,” which would further expand “Ban the Box” protections by requiring employers to make a conditional job offer before being allowed to inquire into the criminal history of an applicant or to conduct any criminal history search. If, after receiving information regarding a prior conviction, the employer no longer wants to employ the applicant, the employer would be required to explain why and provide a copy of the record.

It is important to note that these ordinances are in addition to current New York State law that prohibits discrimination based on criminal conviction status. It is already illegal in New York for an employer to deny employment to a previously-convicted person if that status does not (1) bear directly on the duties and responsibilities of the position sought; or (2) pose an unreasonable risk to people or property. See N.Y. Correct. Law § 752.

If you would like us to review your employee application process, or have other questions about complying with New York anti-discrimination law, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment Practice Area.