Westchester County Joins New York City in Enacting Ban on Criminal History Discrimination in Employment

A criminal record might be one of the greatest impediments to finding employment in the U.S. Employers may overlook applicants with criminal history altogether, even if their particular record would have little to no bearing on the job they are seeking. At the same time, steady employment is a common condition of parole, probation, and other forms of community supervision in the criminal justice system. A lack of employment opportunities is believed by many to be a significant factor in recidivism. To put that another way, the ability to find a job helps people stay out of trouble once they have paid their debt to society. To help people overcome many employers’ reluctance even to consider job applicants with conviction or arrest records, “Ban the Box” (BTB) laws restrict employers’ ability to ask about those matters during the application process and limit their ability to use that information in their decision-making process. In December 2018, Westchester County, New York enacted Local Law LL-2018-14, the “Fair Chance to Work Law.” The new law is similar to BTB laws in New York City and at the state level.

BTB laws get their name from the checkbox on many employment applications asking whether an individual has ever been arrested or convicted of a criminal offense. These laws prohibit employers from asking about criminal history during the early stages of the hiring process—in other words, they ban the checkbox. Employers are also prohibited from advertising a position as being unavailable to people with criminal history. This is somewhat similar to prohibitions on job listings, property listings, and other public notices that discriminate on the basis of race or other factors. Employers may inquire about criminal history later in the process but must be able to justify any adverse decision made on the basis of information obtained from those inquiries.

In New York City, the Fair Chance Act amended the New York City Human Rights Law to add BTB provisions. In addition to restrictions on inquiries about criminal history, employers may not discriminate on the basis of criminal history unless they follow provisions outlined in state law. See N.Y.C. Admin. Code §§ 8-107(10) – (11-a). Those provisions are found in Article 23-A of the New York State Corrections Law.

Under state law, employers may not make adverse decisions about an applicant, or make a “finding of lack of ‘good moral character,’” based on criminal history, unless they identify “a direct relationship between” the criminal history and the specific job being sought. N.Y. Corr. L. § 752. The law identifies factors for employers to consider, such as the applicant’s age at the time of the offense, the length of time since the offense, the seriousness of the offense, and the relevance of the offense to the job. Id. at § 753.

Westchester County’s new law is similar to the laws of New York City and New York State. It prohibits early inquiries into criminal history and advertisements limiting the availability of job openings. It applies the prohibitions on criminal history found in state law, see N.Y. Exec. L. § 296(16), to the county, and requires the evaluation process defined in Article 23-A.

The employment attorneys at Phillips & Associates advocate for New York City workers in claims under city, state, and federal law. To schedule a free and confidential consultation with a member of our team, please contact us today online or at (212) 248-7431.

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