The practice of "banning the box" by removing criminal history inquiries from employment applications is trending nationally with no signs of slowing. In New York, legislation at both the state and local level has been robust, particularly so in New York City. These various limits on employer criminal record inquiries produce a breeding ground of confusion and compliance concerns for employers, including in the context of remote work environments. This article aims to shed light on these practical issues by individually detailing the relevant state and local "ban-the-box" laws in New York; and outlining a practical approach for compliance with these laws in the modern workplace.

Relevant State Protections

Although New York state law does not explicitly "ban-the-box," as discussed below, state law does prohibit employers from making certain inquires and circumscribes how they utilize information about an employee's criminal history. In addition, both federal and state law require applicant consent before an employer can run a third-party criminal background check and require employers to provide adverse action letters for applicant consideration or response prior to denying employment based on information contained in a consumer report. These restrictions serve as the backdrop to a variety of local ban-the-box laws in New York.

  • New York State Human Rights Law (NYSHRL) Section 296(16)

The NYSHRL prohibits all employers from considering or inquiring into: nonpending criminal arrests or accusations that did not result in conviction; youthful offender adjudications; and sealed convictions. See N.Y. Exec. Law Section 296(16).

  • New York Correctional Law Article 23-A

The New York Correctional Law prohibits private employers with 10 or more employees from denying employment to an applicant or adversely acting against a current employee based on a previous criminal conviction unless: there is a direct relationship between the previous criminal conviction and the job; or granting or continuing employment involves an unreasonable risk to property or the safety or welfare of specific individuals or the general public. See N.Y. Corr. Law Section 752. To reach either of these determinations, N.Y. Corr. Law Section 753 requires an employer to conduct an individualized assessment of the following eight factors:

  • The public policy of New York State to encourage the licensure and 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 the person was previously convicted of will have on the person's fitness or ability to perform one or more such duties or responsibilities;
  • The time that has elapsed since the occurrence of the criminal offense or offenses (not the time since arrest or conviction);
  • The age of the person at the time of the criminal offense or offenses (not the age at arrest or conviction);
  • The seriousness of the offense or offenses;
  • Any information produced by the person, or on the person's behalf, in regard to their rehabilitation or good conduct; and
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

At the conclusion of such analysis, the law requires consideration of whether the person has a certificate or relief from disabilities or good conduct, which create a presumption of rehabilitation.