Everything You Need To Know About Ban The Box In New York
Today’s job market is tough on everybody, but it’s especially hard for a person with a criminal conviction to get hired, even if that conviction is many years old and has no relation whatsoever to the job. Studies have shown that up to 70 million adults in the U.S. have arrests or criminal convictions. With a conviction known upfront, a person is about 50% less likely to receive a call back for a job interview. A felony conviction is even more damaging to the prognosis for employment. An employer’s interest in an applicant’s past is reasonable if the type of crime has a bearing on the particular type of job. But to simply turn honest, law-abiding people down because they were once, long ago, convicted of a crime isn’t fair or right.
In New York State, it is illegal under NYS Human Rights Law section 296(15) for employers to discriminate based on criminal convictions, subject to NYS Corrections Law sections 752 and 753. New York is one of four states that have laws prohibiting discrimination against felons for public and private employment. The NYS Corrections Law requires employers to look to see if there is a connection between the conviction and the job applied for, rather than summarily denying the applicant simply because he or she has a criminal record of any kind. While this law does not ban employers from asking about convictions before interviewing a potential hire, it encourages employers to evaluate the individual conviction, thus increasing the chances for a person to get hired despite the conviction.
Unfortunately, when the conviction is known at the outset, some employers find ways to justify summarily denying jobs to applicants with criminal records, such as inventing some other reason for the rejection. The NYS Attorney General forced Bed, Bath and Beyond to pay a fine for refusing to hire people with convictions, with no further investigation into the convictions, in disregard of the law. A portion of the money will go to individuals who were harmed by Bed, Bath and Beyond’s discriminatory policies.
Recognizing this problem, a growing number of states and individual cities have begun to enact legislation to remove felony check boxes from job applications – essentially “banning the box” on applications. This leaves the disclosure and evaluation of criminal records for later in the interview process, after the applicant has had a chance to assert his or her value to the employer, thus granting the applicant a much higher chance of being employed.
Presently, about 12 states, including California, Colorado, Maryland and Delaware, have some type of Ban the Box laws. Some of these state laws apply only to state or public employers, others to private businesses, and some to both. In 18 other states, approximately 60 individual cities and counties have passed their own legislation to remove preliminary criminal background questions. Like the statewide laws, the city and county laws vary widely as to which employers the laws are applied.
Some cities in New York State have followed this trend. Buffalo and New York City have both passed laws to remove the felony check box from pre-interview forms. The 2013 legislation in Buffalo, under Article V of the City Code section 154-25, applies to all employers operating in Buffalo. The New York City Law, under Executive Order 151 and passed in 2011, only applies to city agencies, not private businesses. Under both laws, the employers must conform to Article 23-A of the New York State Corrections Law.
Article 23-A encompasses sections 752 and 753 of the Corrections Law. Under this article, employers must evaluate the relationship between the individual’s conviction and the job that the individual is seeking. Depending on the relationship between the two, the employer might be allowed to base a decision on the criminal record. For example, if an individual convicted of child molestation applied for employment at a school, the correlation between the job applied for and the conviction would allow an employer to deny the individual.
Recently, Rochester has approved legislation to ban the box. The city law was passed on May 20, 2014 and applies to all employers in the city area. Once the law comes into effect, it will be part of the Rochester Code, changing Chapter 63 of the Code by adding additional sections requiring employers to wait to ask about previous convictions until after the application process.
Also recently, NYS Chief Judge Jonathan Lippman has proposed legislation to conditionally seal past convictions for certain crimes, so that the convictions would not hinder employment. The bill follows on efforts of the Sealing Committee of the Criminal Justice Section of the New York State Bar Association. The judge has already taken steps in this direction at the administrative level through the Office of Court Administration. As of April 2014, court clerks and personnel will no longer provide misdemeanor record information to public or private employer requests regarding any individual with a single misdemeanor conviction and no re-arrests for the past 10 years.
There is also a proposed law within New York City called the Fair Chance Act. If passed, this law would be applied to all employers in the city, preventing employers from asking about convictions until after the initial stage of the application. The employer would have to be interested enough in the applicant to make a conditional job offer before inquiring about the person’s criminal record. If after being advised of the past conviction the employer decides not to hire the person, a written report on the decision would be required and the applicant could contest the decision. The bill has been referred to Committee and awaits further action.
The Ban the Box initiative is likely to continue to gain steam as more and more fully reformed, worthy individuals suffer unfair penalties for mistakes they made long ago, and long after they have fully paid back their debt to society. Without Ban the Box laws, we will continue to fuel an ever-expanding population of unemployed and underemployed people to the great detriment of society at large.