The Westchester County Board of Legislation recently passed legislation banning the box — that is, removing the checkable criminal record box from employment applications. The law, which is expected to be signed by the Westchester County Executive and go into effect 90 days later, would prohibit inquiries about an applicant’s criminal conviction or arrest record on employment applications. Several states, counties, and cities across the nation have enacted Ban the Box legislation, and the trend is expected to continue to rise.
Ban the Box laws differ from locality to locality. For example, the pending Westchester County law prohibits employers from asking applicants about their criminal history on the employment application, but permits such inquires after the employment application has been submitted to the employer. In contrast, New York City’s Ban the Box law only allows questions related to the applicant’s criminal history after a conditional offer of employment has been extended to the applicant.
The Westchester County law also references the required analysis for New York employers to undertake when evaluating an applicant’s criminal record under New York State Correction Law Article 23-A. There are several factors included in the analysis, such as the specific duties of the job that the applicant is applying to, the bearing the criminal offense would have on the individual’s ability to perform the job duties, the time elapsed since the occurrence of the criminal offense, the age of the person at the time of the occurrence of the criminal offense, the seriousness of the offense, the applicant’s rehabilitation efforts, and more.
Studies estimate that approximately 75% of people living in the United States reside in a municipality that has passed “fair chance to work” policies. In New York State alone, some form of Ban the Box law exists in Albany County, Buffalo, Dutchess County, Ithaca, Kingston, Newburgh, New York City, Rochester, Syracuse, Tompkins County, Ulster County, Rochester, Westchester County, Woodstock, and Yonkers.
We advise employers in all jurisdictions to seek counsel to ensure that their policies and practices are compliant with the nuances of the Ban the Box laws in their respective localities.
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