NY Suffolk County Ban the Box

April 24th, 2020 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate

On March 19, 2020, the Suffolk County Legislature passed a resolution (the “Amendments”) to amend Chapter 528 of the Suffolk County Code to include Article III, Fair Employment Screening, which restricts inquiries into applicants’ criminal histories. Effective 120 days after the resolution is filed in the Office of the Secretary of State, the Amendments are intended to promote fair employment screening, increase employment opportunities, and mitigate bias and discrimination against those with criminal backgrounds.

Applicants Will No Longer Disclose Past Criminal Convictions

Previously, the County prohibited inquiries into criminal arrest records. The Fair Employment Screening Amendments, applicable to employers with 15 or more employees, state that it is an unlawful discriminatory practice to inquire about or require applicants to disclose criminal conviction histories prior to an application having been submitted, during the application process, or before an initial interview is conducted.

“Conviction” is further defined as any sentence imposed by a court of competent jurisdiction arising from a verdict or plea of guilty, including a sentence of incarceration, a suspended sentence, a sentence of probation, an unconditional discharge, or diversion program.

Ban the Box Considerations for Employers

If an employer does not conduct an interview, they must inform applicants whether a criminal background check will be conducted prior to the start of their employment. The Amendments clarify that employers hiring for licensed trades or professions may ask the same questions that are asked by their licensing body in accordance with state law. Additionally, employers hiring for positions where certain convictions or violations would bar employment in that position under state or federal law may inquire about those convictions or violations.

The Amendments specify the following exceptions:

• If such inquiries are specifically authorized by any applicable law
• Positions with the Suffolk County Police Department, Suffolk County Department of Fire, Rescue, and Emergency Services, or to any other employer hiring for “police officers” and “peace officers”
• Public or private schools, and any public or private service provider of direct service specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled

The Amendments clarify that employers must still comply with Article 23-A of the New York State Corrections Law when evaluating an applicant’s criminal conviction history, and determining their eligibility. The Amendments provide a private right of action for injunctive relief, damages, and other appropriate relief. Additionally, complaints regarding purported violations can be filed with the Suffolk County Human Rights Commission, which will be reviewed by the Director of the Commission who will request commencements of actions against accused parties, if there are affirmative findings, or probable cause.

Suffolk County joins a growing list of state and local jurisdictions passing similar “Ban the Box” regulations to remove barriers to employment for those with criminal histories. Suffolk County employers should review their current hiring practices and consult with their legal counsel to aid in their compliance with these new requirements.

The full text of Intro. Res. 1019-2020  can be found here.

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