City of Buffalo Passes "Ban the Box" Legislation

July 1, 2013

By: Erin S. Torcello

Recently, the City of Buffalo joined the “Ban the Box” club, enacting an ordinance amending Chapter 154 of the Code of the City of Buffalo to prohibit employers from inquiring about an applicant’s criminal convictions during the application process.  This means that employers are prohibited from including such inquiries on employment applications or asking questions about an applicant’s criminal convictions at any time prior to the first interview.  The ordinance applies to public and private employers located within the City of Buffalo, as well as any vendors of the City of Buffalo (regardless of location), with 15 or more employees.  The ordinance was initially set to go into effect immediately, but there is an amendment pending that would delay the effective date to January 1, 2014.  It is expected that the amendment will pass.

There are some exceptions to this general rule.  For example, the ordinance allows inquiries about a criminal conviction where such a conviction would bar employment in that position.  Further, the ordinance does not apply to any public or private school or to a public or private service provider that provides care to children, young adults, senior citizens, or the physically or mentally disabled.  The ordinance also does not apply to any Fire or Police Departments.

The ordinance provides for a private right of action for an aggrieved party to seek injunctive relief, damages, and attorneys’ fees.  Additionally, any individual, whether aggrieved or not, may file a complaint with the Commission on Citizens' Rights and Community Relations.  Upon a finding of probable cause, the Director of the Commission on Citizens' Rights and Community Relations may request that the Buffalo Corporation Counsel pursue an action against the accused employer seeking penalties of $500 for the first violation of the ordinance and $1,000 for each subsequent violation.

Although Buffalo’s “Ban the Box” legislation does not prohibit employers from considering a criminal conviction in the hiring process, employers must be aware that Article 23-A of the New York Corrections Law protects an applicant from discrimination based on a past criminal conviction unless:  (1) there is a “direct relationship” between the criminal offense and the position sought; or (2) granting employment would pose an “unreasonable risk” to property or to the safety or welfare of specific individuals or the general public.  This analysis requires an employer to consider all of the following eight factors:

1. The public policy of the state to encourage the employment of persons previously convicted of one or more criminal offenses.
2. The specific duties and responsibilities necessarily related to the employment sought or held by the person.
3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
4. The time which has elapsed since the occurrence of the criminal offense or offenses.
5. The age of the person at the time of occurrence of the criminal offense or offenses.
6. The seriousness of the offense or offenses.
7. Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
8. The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public.

Going forward, employers who are covered by the ordinance should revisit their application process and revise their employment applications to comply with the “Ban the Box” legislation.  Any hiring managers, supervisors, or other personnel who are involved in the hiring process should be trained concerning the ordinance as well as the limitations contained in Article 23-A of the New York Corrections Law.