The City of Rochester Adopts a "Ban the Box" Ordinance

June 4, 2014

By: Katherine S. McClung

The City of Rochester recently unanimously enacted a “Ban the Box” ordinance, which prohibits employers from asking applicants about criminal convictions at any time before the employer has conducted an initial employment interview or made a conditional offer of employment.  This new ordinance takes effect on November 18, 2014.  It applies to all public and private employers and employment agencies that employ individuals within the City of Rochester, as well as any vendors, contractors, or suppliers of goods or services to the City of Rochester (regardless of their location). There are some exceptions to this general prohibition on inquiries about criminal convictions.  For example, the ordinance allows inquiries where the conviction would legally bar employment in that position or where inquiries into convictions are specifically authorized by another applicable law or by a licensing authority for licensed trades or professions.  Additionally, employers with less than four employees are not covered by the ordinance.  The ordinance also does not apply to applicants for positions in the City of Rochester Police Department, the Fire Department, or any other positions as “police officers” or “peace officers.” The ordinance provides for a private right of action for an aggrieved party to seek injunctive relief, damages, costs, and reasonable attorneys’ fees.  The City of Rochester’s Corporation Counsel may also initiate a court action seeking penalties of $500 for the first violation of the ordinance and $1,000 for each subsequent violation. Although this new ordinance does not prohibit employers from considering a criminal conviction after the candidate submits an application and attends a first interview, 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 the 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.

To ensure compliance, any employers who are covered by this new ordinance should revise their employment applications to omit any questions about criminal convictions.  Covered employers should also train their human resources personnel, managers, supervisors, and any other employees who have contact with job applicants regarding the requirements of this new ordinance, as well as the limitations contained in Article 23-A of the New York Corrections Law.