Every employer wants to promote and sustain a safe workplace. One way in which employers try to accomplish this goal is to conduct background checks on its applicants or new hires to assess whether they might pose a risk to other employees, customers, or other individuals they might encounter during their employment. However, when inquiring about applicants’ criminal histories or arrest records and when basing employment decisions on information obtained through background checks, employers should make sure that they are in compliance with relevant federal, state, and local laws.
On October 10, 2017, the Albany County Legislature amended its County Human Rights Law by passing a law prohibiting all Albany County employers (entities with 4 or more employees) and employment agencies from doing any of the following:
Screening job applicants based on their current wages and benefits or other compensation or salary history.
Requiring that an applicant’s prior wages satisfy minimum or maximum criteria.
Requesting an applicant’s prior wages or salary history or requiring an applicant to provide that information as a condition of being interviewed or considered for employment.
Seeking the applicant’s salary history from a current or former employer.
County Executive McCoy signed the law on November 6, 2017. The law goes into effect thirty (30) days after it is filed with the New York Secretary of State.
The law does provide one exception: an employer or employment agency may confirm prior wages (including benefits or other compensation or salary history) after the employer extends an offer of employment, with the applicant’s written authorization.
Albany County’s law, like similar legislation enacted in other jurisdictions, aims to eliminate the wage gap between women and men. These laws are becoming a growing trend. As we have previously reported, New York City, Massachusetts, Puerto Rico, and Philadelphia have all passed similar prohibitions.
Albany County employers (including employers with offices in Albany County) should immediately remove all salary history inquiries from their job applications. In addition, Human Resources personnel and management employees who are involved in the hiring process should be immediately notified of the new law. As this prohibition continues to gain momentum, employers should keep abreast of further legislative action in other geographical areas as well.
In blog posts on April 11 and May 10, we explained a piece of legislation that will ban nearly all New York City employers from: (1) asking job applicants about their compensation history; and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract. This post serves as a friendly reminder that the law will take full effect on Tuesday, October 31, 2017.
In an April 11 blog post, we explained a piece of legislation that will soon ban nearly all New York City employers from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract. At the time we reported on that legislation, Mayor De Blasio had not yet signed it. New York City employers should be aware that Mayor de Blasio has now signed that legislation into law and it will take full effect on October 31, 2017.
On April 7, 2017, the New York City Council approved legislation that will ban almost all employers in New York City from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract, unless that applicant freely volunteers such information. Mayor de Blasio has not yet signed the bill, but he is expected to do so; once he does, the new legislation will become effective 180 days from that date. Job applicants who allege a violation of this provision may file a complaint with the New York City Commission on Human Rights or directly in court.
This law will even prohibit employers from conducting searches of publicly available records for the purpose of obtaining an applicant’s salary history. Employers will be permitted, however, to ask about an applicant’s salary and benefits expectations. Further, if a job applicant volunteers his or her compensation history, the law will not prohibit employers from verifying and considering such information.
The ban will also not apply to: (1) actions taken pursuant to any law that authorizes the disclosure or verification of salary history; (2) internal transfers or promotions; and (3) public employee positions for which compensation is determined pursuant to procedures established by collective bargaining.
New York City is not the first to pass such a law. In the last 8 months, Massachusetts, Puerto Rico, and Philadelphia have all implemented similar bans on questions about compensation history. Proponents of these laws argue that the bans will help erase pay inequity and will especially help those who have been historically underpaid. Opponents argue that such government action constitutes unconstitutional infringement on free speech rights.
In any case, New York City employers should put their Human Resources personnel, and any others involved in the hiring process, on notice about the imminent change in law. All employers, not just those with employees in New York City, should be mindful of the trend of lawmakers seeking to keep compensation history out of the hiring process and should expect this trend to continue.
Following a national trend to "ban the box" on job applications, on February 13, 2017, the Albany County Legislature passed legislation prohibiting Albany County from inquiring about an applicant’s criminal conviction history until after the applicant receives a conditional offer of employment. The new law, entitled the "Albany County Fair Chance Act," also requires the County to post a disclaimer on job announcements and position descriptions for positions that necessitate an inquiry into the applicant’s criminal history or a background check. If the position for which an applicant is being considered requires inquiry into the applicant’s criminal history, and the result of this inquiry leads to a revocation of the conditional offer, the County must provide the individual with an adverse action notice containing the County’s basis for the decision, a copy of the conviction history report, a notation of the conviction(s) that form the basis of the action, and information on how to appeal the decision. The Act will be enforced by the Albany County Department of Human Resources, and will be effective immediately upon filing in the Office of the Secretary of State.
The applicability of this legislation is extremely narrow: only Albany County itself is subject to its requirements and restrictions. Municipalities and private entities doing business in Albany County are not covered by the law.
Other New York State municipalities have also passed "ban the box" legislation. For additional information regarding "ban the box" legislation applicable to New York City, Syracuse, Rochester, and Buffalo, please click on the link for each municipality.
On June 10, 2015, the New York City Council passed the Fair Chance Act, which amends the New York City Human Rights Law to prohibit most employers in New York City from making any inquiries about an applicant's pending arrest or criminal conviction record until after a conditional offer of employment has been made. The law is expected to be signed by Mayor Bill de Blasio, and will become effective 120 days after it is signed. The law applies to employers with four or more employees, with some exceptions. For example, the law does not apply to actions taken by an employer pursuant to any state, federal, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. The law also does not apply to actions taken by an employer with regard to an applicant for employment as a police officer or peace officer. The law prohibits covered employers from making an inquiry or statement regarding the pending arrest or criminal conviction record of an applicant until after the employer has extended a conditional offer of employment. The term "inquiry" is defined to include not only questions communicated to an applicant in writing or otherwise, but also any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant's criminal background information. After a conditional offer of employment has been made, an employer may inquire about the applicant's arrest or criminal conviction record, but may not take any adverse employment action based on the results of the inquiry unless the employer complies with the following requirements:
The employer must provide a written copy of the inquiry to the applicant in a manner to be determined by the New York City Commission on Human Rights;
The employer must provide a copy of the analysis and any documents in support of the determination to the applicant in a manner to be determined by the New York City Commission on Human Rights; and
The employer must give the applicant at least three business days to respond and must hold the position open for the applicant during the response period.
In addition to prohibiting pre-offer inquiries about an applicant's arrest or criminal conviction record, the Fair Chance Act prohibits employers from publishing any job advertisements or solicitations stating either implicitly or explicitly that an applicant's arrest or criminal conviction record will limit the applicant's opportunity to be considered for the job. In preparation for this new law, covered employers in New York City should take the following steps: (1) review their employment applications and remove any inquiries about an applicant's arrest or conviction record; (2) review their procedures for conducting background checks to ensure that any criminal background checks are not conducted until after a conditional offer of employment has been made; and (3) make sure that all managers and supervisors who conduct interviews or who are otherwise involved in the hiring process are well-trained to avoid asking questions or making statements about an applicant's arrest or criminal conviction record. Editor's Note: Our thanks to John Boyd, one of Bond's Summer Law Clerks, who helped prepare this article.
In follow-up to our April 21 post, New York City Mayor Bill de Blasio signed into law an amendment to the New York City Human Rights Law on May 6, prohibiting employment discrimination on the basis of “consumer credit history.” The amendment makes it an “unlawful discriminatory practice” for an employer to use an applicant's or employee’s consumer credit history when making hiring and other employment decisions, and to otherwise discriminate against an applicant or employee on the basis of his or her consumer credit history. The law goes into effect on September 3, 2015, and applies to most private sector employers in New York City. Under this new amendment, most private New York City employers may only consider an applicant's or employee’s consumer credit history for the following types of positions:
Positions that are non-clerical and have regular access to trade secrets;
Positions with “signatory authority over third party funds or assets valued at $10,000 or more”;
Positions that “involve a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer”;
Positions where job duties regularly include the modification of digital security systems designed to protect the employer’s or client’s networks or databases;
Positions with access to information relating to criminal investigations or national security; and
Positions legally required to be bonded.
There are also exceptions for positions in public agencies, and for employers who are legally required to obtain an applicant's or employee’s consumer credit information. “Consumer credit history” is broadly defined as information relating to an individual’s “credit worthiness, credit standing, credit capacity, or payment history,” including information obtained from credit reporting agencies, as well as information gathered directly by the employer from the applicant or employee, such as whether the individual has items in collections, or has filed for bankruptcy. The enforcement and remedy provisions of this new amendment are the same as for other types of discrimination under the New York City Human Rights Law, meaning aggrieved applicants or employees may file a lawsuit for damages in court, or file a complaint directly with the New York City Commission on Human Rights. Private New York City employers who gather and use an individual’s consumer credit history during hiring or when making other employment decisions should revise such policies. Such information may only be considered when the position held by an employee or sought by an applicant fits into one of the exceptions listed above.
On April 16, 2015, the New York City Council overwhelmingly passed an amendment to the New York City Human Rights Law that would bar most city employers from using credit checks as part of their hiring process. Supporters of the bill argue that in most cases, an applicant’s consumer credit history has no direct correlation to their job performance, and an employer’s use of credit checks in hiring could have an adverse impact on minority job applicants, who are more likely to have poor credit histories.
Similar to Article 23-A of the New York Correction Law, however, the bill does include exemptions for certain professions where there is, in fact, a direct relationship between a person’s credit history and his/her fitness or ability to perform the job. Exempted professions include high-level executives who have financial authority over company or third-party funds or assets worth more than $10,000, elected officials, police officers, and workers who are required to have security clearance under federal or state law, such as those having access to intelligence, national security information, or trade secrets. By focusing employer exemptions on particular job duties as opposed to excluding entire industries, such as banks, this bill has broader coverage than similar laws in other jurisdictions.
If the amendment is signed into law by Mayor de Blasio, New York City would join 10 states and Chicago in barring employer credit checks in hiring.
As the social media phenomenon continues to dominate our culture and its use has become second-nature, it is worthwhile to revisit some of the issues presented by an employer's use of social media, particularly in the context of hiring.
Social media presents a unique workplace conundrum. On one hand, employees generally believe that their use of social media outside of work is none of their employer’s business. However, employers need to make employment decisions based on the best available information, which sometimes includes information an employee or potential employee shares on social media. In the context of hiring, a candidate’s social media page can provide invaluable insight into the candidate’s character. Generally, people tend to be much more candid on social media than they would be during a job interview, and, as the saying goes, “a picture is worth a thousand words.”
While there are currently no laws prohibiting New York employers from accessing an applicant’s social media information during the hiring process, there are potential legal pitfalls depending on how a candidate’s social media information is accessed, what information is obtained, and what information is considered when making a hiring decision. Social media sites contain a lot of information that employers are legally prohibited from considering during the hiring process (e.g., age, sexual orientation, race, religion, ethnicity, etc.). Simply possessing this type of knowledge about a candidate could ruin an otherwise well-based decision not to hire an individual, because it could create an inference that this information was part of the basis for the decision. Thus, employers that use social media as a hiring tool must exercise caution and take the appropriate steps to address these concerns.
At the outset, an employer should determine whether a social media search will be conducted as part of the hiring process, and if so, develop a policy regarding the use of social media in hiring. The policy should address what positions the search will be used for, the scope of the search, and when the search will occur, which is ideally later in the process to limit the number of candidates who are affected. The policy should also clearly identify what information will not be looked at or considered (i.e., protected characteristics), and what will be reported to those involved in hiring. Employers must ensure that this policy is distributed and communicated to hiring managers, and that they understand the purpose of the policy. As with any other policy, it is important that it is followed and applied consistently.
With respect to implementation of the policy, it is imperative that direct hiring managers do not access social media as part of the hiring process. A non-decision-maker should conduct the search and report only relevant, non-protected information to the decision-maker. To ensure this process is effective, the non-decision-maker conducting the search must understand what information the employer is legally prohibited from using when making a hiring decision.
An employer should never access any site that they have not been authorized to access, nor should employers require a candidate to provide them with access to their personal social media accounts. As reported in our April 28, 2012 blog post, legislation was introduced in the New York State Senate that was intended to prohibit employers from failing to hire an applicant based on his/her refusal to provide login information to the employer. Although this bill has not been passed, it is still the best practice to refrain from requiring candidates to provide access to their social media accounts as part of the application process, or as a condition of an offer of employment. In fact, multistate employers should be aware that at least 18 states, including Arkansas, California, Colorado, Delaware, Illinois, Louisiana, Maryland, Michigan, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, and Washington, have enacted legislation regulating an employer’s social media activity, most of which contain prohibitions against requiring applicants or employees to provide the employer with his/her personal login information. Further, employers should not falsify information or impersonate an individual to gain access to the page. In other words, an employer must not ask an employee who is “friends” with a candidate to access his/her page. As a rule of thumb, only view information that is open to the public.
Employers should attempt to verify information before relying on it. Employers should also document and retain the information obtained in the search, including the search criteria and the information considered as a basis for their hiring decisions.
On December 8, the Syracuse Common Council voted 8-1 to pass a “Ban the Box” ordinance. If the ordinance is signed by the Mayor (or if the Mayor's veto is overridden by the Common Council), the ordinance would prohibit the City of Syracuse and persons or entities that provide goods or services under contract with the City from asking a job applicant about criminal convictions unless and until the applicant has already received a conditional job offer. In passing the ordinance, Syracuse joins at least 60 cities (including Buffalo and Rochester) and 13 states that have taken steps to remove the criminal history question on a job application and delay the background check until later in the hiring process. The prohibition, in theory, will enable ex-convicts to exhibit their qualifications for a job before being asked about their criminal histories. As a result, lawmakers hope that this will present opportunities for ex-convicts to obtain employment and thereby reduce the likelihood of criminal recidivism. Syracuse’s version, as mentioned above, applies only to the City itself and any "person, vendor, business enterprise or entity that enters into a service contract or concession agreement with the City, or otherwise supplies goods and/or services to, or on behalf of, the City." Thus, under the ordinance, neither the City nor its contractors may inquire into an applicant’s criminal history until a conditional offer of employment has been extended. After a conditional job offer has been extended, an applicant's criminal record can be investigated, but the job offer may be rescinded only if it is done in accordance with the provisions of Article 23-A of the New York Correction Law. Thus, the City and its contractors may rescind a conditional job offer on the basis of a prior criminal conviction only if hiring the applicant would pose an unreasonable risk to property or safety, or if the conviction bears a direct relationship to the job. If a contractor subject to the ordinance is considering rescinding a conditional job offer based on the applicant's criminal record, the ordinance would require the contractor to send a notice to the applicant that includes the relevant Criminal History Report and highlights the convictions that warrant a rescission of the conditional offer. If the applicant so chooses, within five days of receiving this notice, he or she can then submit a rebuttal, challenging the accuracy and relevance of the Report. The contractor is then required to review the rebuttal, and any information contained within it, before making a final decision. The ordinance does not apply to the City of Syracuse Police Department or to any "police officer" and "peace officer" positions. In addition, the ordinance would give the Mayor of the City of Syracuse the power to temporarily suspend the applicability of the ordinance to any contractor or prospective contractor for up to three months if there is a specific exigent circumstance or public emergency condition that justifies such an action. The incarnation of the ordinance that passed is markedly less sweeping than its failed predecessors, which would have applied the prohibition to all employers within the City of Syracuse. Mayor Stephanie Miner has yet to say whether she will veto the ordinance. If she does veto the ordinance, the veto could be overridden if at least six members of the Common Council vote to do so. If the ordinance is ultimately approved, either with the Mayor's signature or an override of her veto, it will take effect 90 days after it is passed. The ordinance will have a significant impact on City of Syracuse contractors if and when it goes into effect, in no small part because of the civil action authorized by the ordinance against any contractors who are alleged to be in violation of the ordinance. The ordinance also provides that the court may allow the party commencing such an action against a contractor to recover costs and reasonable attorneys' fees as part of the relief granted. City of Syracuse contractors should fully acquaint themselves with the particulars of the ordinance, train all personnel involved in the hiring process to avoid once-standard criminal history inquiries until after the interview is complete and a conditional job offer has been extended, and review job applications and other documents used in the hiring process (including online questionnaires) to ensure compliance.
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:
The public policy of the state to encourage the employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the employment sought or held by the person.
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.
The time which has elapsed since the occurrence of the criminal offense or offenses.
The age of the person at the time of the occurrence of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
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.