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Friday, October 14, 2016

States and political subdivisions of states adopting “Ban the Box” laws prohibiting employers from inquiring into the criminal history of applicants on initial employment applications


States and political subdivisions of states adopting “Ban the Box” laws prohibiting employers from inquiring into the criminal history of applicants on initial employment applications

So-called “Ban the Box” legislation is being enacted by many public jurisdictions to eliminate the possibility of job candidates being disqualified from further consideration based on a criminal history that has been revealed in his or her initial application form.  Instead, legislation is being adopted to require that employers, public and private alike, consider the applicant’s qualifications for the position first and than subsequently make individualized inquiries into any criminal conviction and determine whether any such conviction relevant in making a decision with respect to the individual’s being selected for the job sought or to public safety.*

New York State Attorney General Schneiderman has stated that his office is committed to breaking down barriers that impede rehabilitation, especially those that prevent fair access to employment,” noting that several municipalities across New York State have enacted “Ban the Box” legislation. 

Although there is no statewide "ban the box" law in New York currently in effect,**  Article 23-A of New York State’s Correction Law mandates that both public and private employers be mindful of a number of specific factors when considering criminal history information during the hiring process in making an employment decision. 

The text of Article 23-A is posted on the Internet at:

Consistent with Article 23-A, an employer may not deny employment because of an individual’s criminal history unless [1] it can draw a direct relationship between the applicant’s criminal record and the prospective job or [2] show that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

In the event the employer determines that such a direct relationship exists, an employer must evaluate the several Article 23-A factors listed below to determine whether the concerns presented by the relationship have been mitigated. If the potential employer determines that the concerns presented by the relationship have not been mitigated, it must then demonstrate how the factors combine to create an unreasonable risk.

The Buffalo “Ban the Box” Ordinance is posted on the Internet at:

New York City’s Local Law to “Ban the Box” is posted on the Internet at:

The Rochester “Ban the Box” Ordinance is posted on the Internet at:


* The New York State Department of Civil Service’s examination application form NYS APP (6-16) includes the following statement and questions:

Certain job titles, including many law enforcement positions (such as Correction Officer, Parole Officer, and Park Patrol Officer) and direct patient care positions (such as Mental Health Therapy Aide and Secure Care Treatment Aide), are also subject to agency criminal history background investigations, as required by law. Applicants should read the official examination announcement for more specific information.

If you answer YES to any of these questions, please provide a detailed explanation in the REMARKS section provided below, including employer information, position, reasons and dates:

1. Yes [ ]  No [ ] Were you ever discharged from any employment except for lack of work, funds, disability or medical condition?

2. Yes [ ]  No [ ] Did you ever resign from any employment rather than face a dismissal?

3. Yes [ ]  No [ ] Did you ever receive a discharge from the Armed Forces of the United States which was not an “Honorable Discharge” or a “General Discharge under Honorable Conditions”?

REMARKS:



** The Article 23-A factors to be considered are:

1. That New York public policy encourages the licensure and employment of people with criminal records;

2. The specific duties and responsibilities of the prospective job;

3. The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;

4. The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;

5. The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction;

6. The seriousness of the applicant’s conviction history; and

7. Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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