June 25, 2019

June 25, 2019

Subscribe to Latest Legal News and Analysis

June 24, 2019

Subscribe to Latest Legal News and Analysis

New York’s Westchester County to Implement Ban-the-Box Law Limiting Criminal Background Inquiries

Effective March 4, 2019, private employers in New York’s Westchester County will be restricted from inquiring about a job applicant’s criminal background during the preliminary stages of the application process.

Employers using employment applications that ask if an applicant has a criminal record should remove that as a required inquiry from their applications by the law’s effective date. Employers also should review job advertisements or job postings to ensure that, at this stage, there are no limiting barriers to applying for employment relating to arrest or criminal history.

The Westchester Fair Chance to Work Act, which amends Westchester’s Human Rights Law, prohibits any inquiries regarding applicants’ conviction histories until the applicant has made a preliminary or initial application for employment. “Any inquiry” is defined as a question communicated to an applicant in writing or otherwise. It also prohibits any job advertisements or postings that would relate to arrest or criminal history, unless otherwise permitted by law (see below).

Westchester has become a ban-the-box county for almost all employees. County Executive George Latimer previously had signed an executive order banning criminal conviction questions for public sector employees.

Unlike the New York City variation of “ban-the-box,” Westchester employers may ask questions regarding an applicant’s criminal history after receiving an employment application. Best practice typically is for employers to wait until the post-offer stage to lawfully inquire about conviction history. This amendment to Westchester’s Human Rights Law codifies New York Executive Law § 296(16), requiring employers, for example, not to consider an arrest or criminal accusation not then pending against an applicant. If an unlawful arrest or conviction inquiry is made of an individual under this Act (e.g., timing or actual inquiry), the applicant is not required to respond, and the employer may not disqualify the applicant from prospective employment.

In addition, consistent with New York law, the Westchester law requires employers to conduct an analysis of the applicant’s criminal history and the factors set forth in Article 23-A of New York’s Correction Law (https://www.labor.ny.gov/formsdocs/wp/correction-law-article-23a.pdf). These factors include the time that has elapsed since the occurrence of the offense and information produced regarding the individual’s rehabilitation and good conduct. This analysis may be requested by an applicant who has been denied employment. After someone has been denied employment, if requested by the applicant, State law and now local law require providing a written statement of the reasons for denial within 30 days.

The Westchester Act does not affect certain employers required by any federal, state, or county laws to run background checks on potential employees or employers that are barred from employing individuals based on criminal history. Employers of police officers, peace officers, and school teachers who have background check obligations imposed by law, by way of example, would fall into this category.

To ensure compliance with the new Westchester requirements, employers should review their existing forms and procedures and revise them as needed. Employers also should consider training those who may meet with applicants on the new requirements.

Jackson Lewis P.C. © 2019

TRENDING LEGAL ANALYSIS


About this Author

Susan M. Corcoran, Jackson Lewis, fair credit reporting lawyer, Labor Policy Attorney
Principal

Susan M. Corcoran is a Principal in the White Plains, New York, office of Jackson Lewis, P.C. Ms. Corcoran is a seasoned employment counselor and litigator and is often thought of as the “go to” person on national workplace law issues for her clients.

She is one of the leaders of the firm’s Background Check Resource Group, and serves as a resource on fair credit reporting act issues, as well as “ban the box” strategies. She taught a graduate employment law class for many years at Manhattanville College and frequently speaks...

914-872-6871
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free. With respect to employee relations matters, Mr. Greenberg has extensive experience assisting clients in numerous industries with the development and maintenance of personnel policies and personnel infrastructures. In this regard, Mr. Greenberg often works on these issues with clients as business needs and culture change as a result of business transactions, such as mergers and acquisitions.

212-545-4080
Bradley M. Pryba, Principal, Government relations Attorney, Jackson Lewis, Law Firm
Principal

Bradley M. Pryba is a Principal in the Albany and White Plains, New York, offices of Jackson Lewis P.C.

Mr. Pryba works closely and effectively with government officials of all political persuasions in developing innovative and lasting resolutions to clients’ most complicated issues. With a combination of solid legal skills and seasoned judgment, he represents nationally and internationally recognized organizations as well as nonprofits and local businesses. Mr. Pryba offers sound and sensible strategies designed to resolve...

518-512-8700
Associate

Thomas L. Petriccione is an Associate in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Mr. Petriccione also assists organizations on items such as employee handbook policies and family leave law matters.

While attending law school, he was a Notes and Articles Editor of the Fordham Intellectual Property, Media & Entertainment Law Journal and...

914-872-6927