Effective August 25, 2020, Suffolk County will join a growing number of New York jurisdictions, including New York City, Buffalo, Rochester, and Westchester County, in restricting the use of pre-employment inquiries into an applicant's criminal conviction history, adding to the existing statewide requirements of Article 23-A of the New York State Correction Law. In addition, Suffolk County will join dozens of other states, counties, and municipalities that restrict consideration of an applicant's criminal history at the initial application phase.

Fair Employment Screening

The new law, which was passed by Suffolk County's Legislature on March 17, 2020 and filed with the Secretary of State on April 27, 2020, prohibits an employer located within Suffolk County with 15 or more employees from asking questions regarding or pertaining to an applicant's criminal convictions during any aspect of the application process.¹ The law broadly defines applicant as "any person considered or who requests to be considered for employment by an employer," including, among other things, temporary or seasonal work, contracted work, contingent work, and work through a temporary staffing agency.

An employer cannot consider an applicant's prior convictions until after an application has been submitted and an initial interview of the applicant has taken place.

Specifically, the new legislation makes it an unlawful discriminatory practice to:

• inquire regarding, or to require any person to disclose or reveal, any criminal conviction during the application process. The application process begins when the applicant inquires about the employment sought, and ends when an employer has accepted an employment application from the applicant; and
• inquire regarding, or require any person to disclose or reveal, a criminal conviction 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.

However, where an employer is hiring for licensed trades or professions (including positions such as interns and apprentices for such licensed positions), the employer may ask the same questions asked by the trade or professional licensing body in accordance with state law.

Exceptions to the Prohibition on Criminal Conviction Inquiries

When the Suffolk County ban-the-box law becomes effective, Suffolk County employers may nevertheless ask applicants about prior criminal convictions in the following situations:

• Where authorized by any applicable law.
• Where certain convictions or violations are a bar to employment in that position under state or federal law.

The prohibitions against pre-employment inquiries into an applicant's criminal conviction history also do not apply to:

• any public or private school; or
• 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; or
• the Suffolk County Police Department, Department of Fire, Rescue, and Emergency Services, or any other employer hiring for "police officer" and "peace officer" as defined by the Criminal Procedure Law.

Adverse Action Procedure

A denial of employment due to an applicant's criminal conviction history must comply with the provisions of Article 23-A of the New York Correction Law, which requires an employer to conduct an individualized assessment of the impact of the applicant's criminal history on the relevant job. After conducting the required individualized assessment, an employer may 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 the candidate would pose an unreasonable risk to property or to the safety of individuals or the general public.

Enforcement

An aggrieved individual may file a complaint with the Suffolk County Human Rights Commission within one year after the occurrence of the alleged unlawful discriminatory practice. An individual alleging a violation may also file a civil action and seek reasonable attorney's fees.

Comparing New York's Local Ban-the-Box Laws

Similar to Westchester County, as well as Rochester and Buffalo, Suffolk County's ban-the-box law delays background checks and an employer's consideration of an applicant's prior criminal convictions until after the employment application has been accepted by the employer, and after the initial phone or in-person interview has been conducted.² Suffolk County's law is not as restrictive as New York City's Fair Chance Act (FCA), which only permits employers to run background checks, or require applicants to provide information regarding their criminal history, after a conditional offer of employment is made.³ The FCA also goes further than other ban-the-box laws in New York in its requirements to provide notice to the applicant of the anticipated adverse action and an opportunity to respond. That is, the FCA, unlike the other ban-the-box laws noted above, requires employers to provide the applicant with a copy of its analysis of the Article 23-A factors, and provides the applicant with a reasonable time (of not less than three business days) to respond to the employer's Article 23-A analysis, or otherwise correct any errors on a criminal background check, before the denial of employment.⁴

Compliance Recommendations for Employers

The new law takes effect on August 25, 2020. Prior to this date, covered employers recruiting for positions in Suffolk County, NY should review their employment applications and remove any questions about or reference to criminal convictions. Covered employers should also revise their hiring procedures to delay any inquiry about criminal convictions until, at the earliest, after an initial employment interview has been conducted, or if no interview is conducted, until after a conditional offer of employment has been made. Employers and employment agencies that employ persons in the state of New York, or in other jurisdictions with specific ban-the-box laws, should consult with experienced employment counsel to assess their compliance with the aforementioned ordinances, as well as with applicable federal law.⁵

Posted: May 12, 2020

¹ The statute does not address whether employers located in Suffolk County who are hiring for jobs located outside of Suffolk County are covered by this law. We expect interpretive regulations or guidance addressing this question from the Suffolk County Human Rights Commission prior to the law taking effect.

² See Rochester City Code §§ 63-12, 63-13; Buffalo Code § 154-25; Suffolk County Code § 528-21; Westchester County Code § 700.03(a)(10).

³ See N.Y.C. Admin. Code § 8-107(11-a).

⁴ Id.

⁵ Regardless of where in New York the position applied for is located, if the employer obtains a consumer report, such as a criminal background check, and is considering adverse action based in part on the contents of that report, it must also comply with the requirements of the federal Fair Credit Reporting Act, 1 U.S.C. §1681 et seq., 12 U.S.C. §§1830-1831.