Prospective employers in Rochester, New York, will no longer be able to ask applicants to describe their criminal history in an employment application, and for a time thereafter. The City on May 20, 2014, enacted a “Ban the Box” Ordinance, which restricts the timing of these pre-employment inquiries. 

The Ordinance will become effective on November 18, 2014. Rochester is the second city in New York, after Buffalo, to pass such legislation.

The Rochester Ordinance prohibits employers from requiring an applicant to disclose or reveal any criminal conviction information during the “application process.” The Ordinance defines the “application process” as beginning when the applicant inquires about employment and ending when an employer has conducted an initial employment interview or made a conditional offer of employment. The employer may inquire about a criminal conviction no earlier than after the “initial interview.” The Ordinance defines “initial interview” to mean “direct contact, by phone or in person, between the applicant and the prospective Employer to discuss the employment being sought or the applicant’s qualifications.” If the employer does not conduct an interview, the Employer must inform the applicant whether a criminal background check will be conducted before employment is to begin and must wait until after it has extended a conditional offer of employment before conducting the criminal background check or otherwise inquiring into the applicant’s criminal history.

What Employers are Impacted?

The Ordinance applies to any private employer located in the City of Rochester that employs at least four persons in any position where their primary place of work is located within the City of Rochester. The definition of employer includes temporary, job placement, referral or other employment agencies, as well as labor organizations. 

The Ordinance also applies to the City itself, as well as its vendors, contractors or suppliers of goods or services (including vendors located outside the City of Rochester limits).

The Ordinance specifically excludes several categories of employers:

• Employers who are otherwise authorized by any other law or by a licensing authority to inquire into criminal convictions may continue to do so;

• Employers may continue to inquire in the application process regarding criminal convictions where certain criminal convictions would be a bar to employment in the position applied for under New York State or federal law;

• Applicants for positions in the City of Rochester’s Police and/or Fire Departments or any other employer hiring for “Police Officer” or “Peace Officer,” as those positions are defined in New York’s Criminal Procedure Law. 

Enforcement

The Ordinance authorizes an aggrieved party to bring suit for monetary damages and for injunctive relief or any other appropriate relief. The Ordinance provides that a court may allow the party “commencing the suit,” if it prevails, costs and reasonable attorneys’ fees as part of the relief granted to the prevailing party. Any suit under the Rochester Ordinance must be started within one year after the alleged violation.

In addition to the private right of action, the City of Rochester’s Corporation Counsel is authorized to bring an action to restrain or prevent any violation of the Ordinance. In such an action, the Ordinance permits the imposition of penalties starting at $500 for the first violation and increasing to $1,000 for each subsequent violation.

Recommendations

Employers that are covered by this Ordinance should review their employment applications and remove any questions about criminal convictions. In addition, if you are subject to this Ordinance, you should revise your hiring procedures to delay any inquiry about criminal convictions until after an interview (face-to-face or telephone interview) has been conducted. If no interview is conducted, then you should delay any inquiry about criminal convictions until after a conditional offer of employment has been made. 

Employers must still comply with Article 23-A of the New York State Correction Law and Fair Credit Reporting Act when considering an applicant’s prior convictions in determining suitability for employment. Article 23-A of the New York State Correction Law permits the withdrawal of a conditional offer employment when the employer reasonably determines that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position sought or that hiring the candidate would pose an unreasonable risk to property or to the safety of individuals or the general public. Recent Equal Employment Opportunity Commission guidance under federal discrimination law is similar.