Suffolk County, New York Passes Ban the Box Law

We have previously discussed several new “ban the box” laws at the local, state, and even federal level. On March 17, 2020, Suffolk County, New York passed their version of a ban the box law.

This law applies to the County AND certain private businesses located in the County. The law defines an “Employer” as “the County or any person, partnership, corporation, labor organization, not-for-profit, or association having fifteen (15) or more employees.”

The new law creates a “Fair Employment Screening” requirement, which places restrictions on when an Employer, as defined by the law, is permitted to ask about an applicant’s criminal history. The new law states that:

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.

The Suffolk County ban the box law goes into further detail on the new ban the box restrictions, stating that:

• 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.
• 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.

Additionally, the law says that if an Employer does conduct a criminal background check on an applicant after following the new ban the box restrictions, it “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.” Article 23-A of the New York State Corrections Law describes, among other things, certain factors an employer should consider before making an employment decision based on a candidate’s previous criminal history. A copy of Article 23-A is available here.

There are some exceptions to the Suffolk County law:

• Employers hiring for licensed trades or professions, including positions such as interns and apprentices for licensed positions, may ask applicants the same questions asked by trade or professional bodies, in accordance with New York state law.
• Employers hiring for positions where certain convictions or violations are a bar to employment in those positions under New York state or Federal law can ask questions about those convictions or violations.
• The law doesn’t apply if criminal conviction inquiries or adverse action are specifically authorized by any other applicable law.
• The law doesn’t apply to any public or private school, or any public or private provider of direct services specific to the care or the supervision of children, young adults, senior citizens, or the physically or mentally disabled.
• The law doesn’t apply to select police or fire departments.

There’s still some time to determine if, or how, these new restrictions may impact you. The new law is set to become effective on August 25, 2020.

The new Suffolk County ban the box law is just one of the latest in the expanding ban the box movement. With the rapidly changing legal landscape surrounding these laws, you may want to check with your legal counsel to determine if this Suffolk County law, or any other ban the box restrictions, apply to you.