There has been a lot of talk in our area lately about “ban the box,” or not allowing employers to ask applicants at the initial application stage whether or not they have been convicted of a crime. In fact, municipalities across the country are passing ban the box laws. The idea behind ban the box is to allow potential employers to get to know an applicant first, and decide whether they are employee material before asking about their criminal conviction status.
Ban the box laws do not mean that you must hire an applicant with a criminal conviction, nor do they mean that you may not do criminal background checks. The laws simply require that employers put off asking about criminal convictions until later in the hiring process. Employers may still use criminal convictions as a means of excluding applicants in certain situations, such as positions in law enforcement and where required by licensing authorities or state or federal law.
However, it must be noted that the law, both in New York and federally, prohibits employers from taking adverse action based on a person’s conviction record unless the conviction is directly related to their job duties. In determining such a relationship, New York employers must consider the following factors: the specific job duties; the bearing of the criminal offense on the ability to perform the duties; the time that has elapsed since the criminal offense; the applicant’s age at the time of the criminal offense; the seriousness of the offense; the public policies favoring employment of ex-convicts; rehabilitation and good conduct; and the legitimate interest of the employer in protecting property and the safety and welfare of the general public.
Employers should take a close look at their open position and determine whether it is even necessary to perform a background check at all. Also, employers must be reminded that they are required to comply with the Fair Credit Reporting Act when using a third party to conduct background checks.
As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.