The practice of "banning the box" by removing criminal history inquiries from employment applications is trending nationally with no signs of slowing. In New York, legislation at both the state and local level has been robust, particularly so in New York City. These various limits on employer criminal record inquiries produce a breeding ground of confusion and compliance concerns for employers, including in the context of remote work environments. This article aims to shed light on these practical issues by individually detailing the relevant state and local "ban-the-box" laws in New York; and outlining a practical approach for compliance with these laws in the modern workplace.

Relevant State Protections

Although New York state law does not explicitly "ban-the-box," as discussed below, state law does prohibit employers from making certain inquires and circumscribes how they utilize information about an employee's criminal history. In addition, both federal and state law require applicant consent before an employer can run a third-party criminal background check and require employers to provide adverse action letters for applicant consideration or response prior to denying employment based on information contained in a consumer report. These restrictions serve as the backdrop to a variety of local ban-the-box laws in New York.

• New York State Human Rights Law (NYSHRL) Section 296(16)

The NYSHRL prohibits all employers from considering or inquiring into: nonpending criminal arrests or accusations that did not result in conviction; youthful offender adjudications; and sealed convictions. See N.Y. Exec. Law Section 296(16).

• New York Correctional Law Article 23-A

The New York Correctional Law prohibits private employers with 10 or more employees from denying employment to an applicant or adversely acting against a current employee based on a previous criminal conviction unless: there is a direct relationship between the previous criminal conviction and the job; or granting or continuing employment involves an unreasonable risk to property or the safety or welfare of specific individuals or the general public. See N.Y. Corr. Law Section 752. To reach either of these determinations, N.Y. Corr. Law Section 753 requires an employer to conduct an individualized assessment of the following eight factors:

• The public policy of New York State to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
• The specific duties and responsibilities necessarily related to the employment sought or held by the person;
• The bearing, if any, the criminal offense or offenses the person was previously convicted of will have on the person's fitness or ability to perform one or more such duties or responsibilities;
• The time that has elapsed since the occurrence of the criminal offense or offenses (not the time since arrest or conviction);
• The age of the person at the time of the criminal offense or offenses (not the age at arrest or conviction);
• The seriousness of the offense or offenses;
• Any information produced by the person, or on the person's behalf, in regard to their rehabilitation or good conduct; and
• The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

At the conclusion of such analysis, the law requires consideration of whether the person has a certificate or relief from disabilities or good conduct, which create a presumption of rehabilitation.

Local Ban-the-Box Laws

The state protections in NYSHRL Section 296(16) and Article 23-A are layered with more explicit local ban-the-box legislation for private employers in New York City, Buffalo, Rochester, Suffolk County, and Westchester County (Albany, Syracuse and Ithaca counties also have laws for certain public employees).

Buffalo, Rochester and Suffolk County:

Buffalo's fair screening ordinance prohibits private employers with at least 15 employees from inquiring about or requiring the disclosure of criminal convictions before a first interview. City of Buffalo Code, Sections 154-25, 154-27(B). Where an interview is not conducted, employers must inform applicants of whether a criminal background check will be conducted prior to commencement of employment. Notice would have to ensue in any event since the federal Fair Credit Reporting Act requires an employer to obtain written consent before running a background check.

Employers may invoke an exemption to the Buffalo ordinance requirements where:

• certain convictions or violations are a bar to employment pursuant to New York State or federal law;
• the employer is hiring for police officer or peace officer positions; or
• the employer is hiring for positions in any public or private school or provider of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled.

Additionally, the Buffalo ordinance allows employers hiring for licensed trades or professions to ask applicants the same questions required by the trade or professional licensing body under New York State law.

Suffolk County's ban-the-box law models the Buffalo ordinance with no significant differences. Rochester's fair employment screening ordinance is likewise similar, but applies to private employers with at least four employees and is slightly broader in that it provides an additional "conditional offer of employment" milestone for employers to achieve before inquiring about criminal convictions where an interview is not conducted. It also requires an employer to notify an applicant if a criminal background check will be conducted before employment begins. See RMC Section 63-14(A), (B).

Westchester County:

Under the Westchester County ban-the-box law, employers with at least four employees are prohibited from: inquiring into criminal convictions and arrest records until an individual submits an application for employment; and circulating any solicitation, advertisement, or publication that identifies employment limitations related to an individual's arrest record or criminal conviction. See WCL Section 700.02(10)(a)(2). Moreover, after conducting an Article 23-A analysis, employers must provide applicants with a written statement of reasons for denying employment when requested by the applicant. The exemptions recognized under the Westchester law include: where any state, federal, or county law requires a criminal background check or bars employment based on criminal history; and where the applicant is applying for a police or peace officer job, or at a law enforcement agency.

The Westchester law's ban-the-box restriction timeframe is narrower than under the Buffalo ordinance, Suffolk County Law, and Rochester ordinance. However, it is more expansive in that it regulates circulation materials and includes one less exemption.

New York City:

New York City's ban-the-box legislation, the Fair Chance Act (FCA), is the broadest ban-the-box legislation in the country and can be a trap for the unwary. The FCA's most significant protections were introduced in amendments that became effective on July 29, 2021. In the near future, we may see these protections crystalize and expand further, as the New York City Commission on Human Rights recently proposed amendments to the FCA to account for certain changes brought about by the 2021 amendments.

The FCA has for many years had three key requirements for private employers with at least four employees: prohibiting inquiries concerning a job applicant's criminal history until a conditional offer of employment has been made; requiring employers to provide applicants a written copy of any criminal background check inquiry conducted, along with the employer's written analysis of the applicability of the Article 23-A factors; and holding the applicant's position open for a period of at least three days (now five days) from the applicant's receipt of the inquiry and analysis to permit the applicant to respond.

In the 2021 amendments, a "two-step background check" requirement was added to the FCA for private employers with at least four employees. This requirement prohibits employers from requesting or reviewing any criminal background information until the employer has assessed all of an individual's non-criminal background information and made a conditional offer of employment with all conditions other than the criminal background requirement satisfied. See NYC Admin. Code Sections 8-102, 8-107(11-a). The rationale for this amendment was to insure that employers do not exclude an applicant based on their conviction record but then cite to another condition, e.g., a reference check, as the basis for not proceeding with the offer.

According to guidance from the New York City Commission on Human Rights, employers who request consumer reports on applicants should receive this information in two stages, with the non-criminal information being received before the conditional offer and criminal information being received after. See NYC Commission on Human Rights Legal Enforcement Guidance, https://www.nyc.gov/site/cchr/law/fair-chance-act.page (last visited Oct. 3, 2024) (hereinafter Enforcement Guidance). If obtaining two consumer reports poses a substantial impediment, the NYC Commission of Human Rights states employers may also comply with the NYCHRL by establishing an internal system that segregates criminal history information until after a conditional offer has been made. However, these employers will bear burden of proving that the criminal information was inaccessible to decision-makers until after a conditional offer.

The 2021 amendments also incorporated new protections regarding pending criminal cases and convictions during employment. Specifically, private employers with at least four employees may not adversely act based on an applicant or employee's arrest or pending criminal accusation without analyzing seven NYC fair chance factors and determining either that there is a direct relationship between the pending arrest, pending criminal accusation, or conviction; or the granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. See NYC Admin. Code Section 8-107(10); Enforcement Guidance. These seven factors are essentially the same as the eight correction law factors discussed above with nuanced differences, such as specifically stating that it is a mitigating factor if the person was age 25 or younger at the time of the at-issue criminal offense or accusations.

Following the 2021 amendments, violations and non-criminal offenses also became completely protected under the FCA, unless otherwise required or permitted by applicable law. This requirement applies to employers of all sizes. See NYC Admin. Code Section 8-102. The New York City Commission of Human Rights has published a non-exhaustive list of histories that qualify as nonconvictions.

The FCA's Fair Chance Factors are subject to a few exemptions, including where: federal, state, and local laws require criminal background checks or bar employment based on certain criminal histories; an employer is in the financial service industry, to the extent that the FCA conflicts with industry rules and regulations promulgated by a self-regulatory organization; the employees are police or peace officers; or (iv) the employees are employed by a New York City agency.

Importantly, employers may take adverse action against a job applicant or employee who makes intentional misrepresentations regarding their arrest or conviction record, provided that the employer provides the job applicant or employee with a copy of the documents on which that determination was made; and the job applicant or employee is provided at least five business days to respond.

Local Law Interaction

In the modern age of Zoom interviews and remote work, New York's patchwork of ban-the-box legislation may prove challenging. Employers should consider if a local law would apply to it even if it doesn't operate there, if an applicant is interviewing from there or would ultimately work remoting from that location, or the applicant isn't interviewing from there or wouldn't work there, but the employer operates there. The answer to this question will likely vary on the particular law and applicable facts.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.