“Ban the Box” in Suffolk County Starting Around August 25, 2020

Suffolk County, NY amended their current Suffolk County Code to include a new Section titled “Fair Employment Screening in Suffolk County”. This new Section is a “ban the box” law and includes certain restrictions for employers during the hiring process. The effective date of the ordinance is 120 days after being filed with the New York Secretary of State, which will be around August 25, 2020.

According to the law, employers with 15 or more employees will be prohibited from requesting criminal conviction information from applicants during the hiring process. It is now considered an “unlawful discriminatory practice” for an employer to:

• Make an inquiry or require any person to disclose or reveal any criminal conviction history information during the hiring (application) process. It also defines that the application process begins when an applicant inquires about the job and ends when the employer accepts the application.
• Make an inquiry of require a person to disclose or reveal any criminal conviction information about themselves before a first interview. If the employer does not conduct an interview, then the applicant must be informed whether or not a criminal background check will be performed before employment begins.

Employers must also comply with the New York State Article 23-A requirements when considering an applicant’s prior convictions. Employers will be allowed to withdraw conditional offers of employment for lawful reasons.

Specifically, the legislation states:

• 528-20. Fair Employment Screening–

Suffolk County and any employer located within the County shall not ask questions regarding or pertaining to an applicant’s prior criminal conviction on any preliminary employment application. Consideration of the candidate’s prior criminal convictions shall take place only after an application is submitted, after an initial interview or thereafter. 

• 528-21. Fair Employment Screening Standards.

1. It shall be an unlawful discriminatory practice for an employer to make any inquiry regarding or to require any person to disclose or reveal any criminal conviction during the application process. The application process shall begin when the applicant Inquires about the employment sought and shall end when an employer has accepted an employment application.
2. It shall be an unlawful discriminatory practice for an employer to make any inquiry regarding or to require any person to disclose or reveal any criminal conviction against such person before a first interview. If an employer does not conduct an interview, that employer must inform the applicant whether a criminal background check will be conducted before employment is to begin.
3. An employer hiring for licensed trades or professions, including positions such as interns and apprentices for such licensed positions, may ask applicants the same questions asked by the trade or professional licensing body in accordance with New York State law.
4. An employer hiring for positions where certain convictions or violations are a bar to employment in that position under New York State or Federal law shall not be constrained from asking questions about those convictions or violations.
5. An employer shall comply with Article 23-A of the New York State Corrections Law when considering an applicant’s prior criminal convictions in determining suitability for employment. In accordance with Article 23-A. nothing in this law shall be construed to limit an employer’s authority to withdraw conditional offers of employment for any lawful reason, including the determination that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position sought, or that hiring would pose an unreasonable risk to property or to the safety of Individuals or the general public.

• 528-22. Exceptions

1. The prohibitions of this article shall not apply If the inquiries or adverse action prohibited herein are specifically authorized by any other applicable law.
2. The prohibitions of this article shall not apply to the Suffolk County Police Department or the Suffolk County Department of Fire. Rescue, and Emergency Services, or to any other employer hiring for “police officer” and “peace officer” positions, as defined by Criminal Procedure Law 51.20 and 52.10.
3. The prohibitions in this article shall not apply to any public or private school nor to any public or private service provider of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled.

• 528-23. Enforcement.
• Any person aggrieved by a violation of this article may commence a civil action or proceeding for injunctive relief damages, and other appropriate relief in law or in equity against a person who violates this article. In any such action or proceeding, the court in
• its discretion, may allow for the party commencing such action or proceeding, if such party prevails, a reasonable attorney’s fee as part of the costs.
• Any person or organization, whether or not an aggrieved party, may file with the Human Right Commission a complaint alleging violation of this article. Such complaint shall be in writing on a form prescribed by the Director of the Human Right Commission.
• Upon certification by the Director of the Human Rights Commission that there has been an affirmative finding of probable cause of discriminatory practice, the Director may request the Commission to commence an action against the accused party, in a court of competent jurisdiction, seeking the imposition of civil penalties and damages in conformance with Section 528-14 of this Chapter.
• Link to Suffolk County, NY Ordinance: Suffolk County, NY Fair Employment Screening

 

The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly