Ban the Box

Ban the Box by Alan Krystal

{4:42 minutes to read} One standard question that often appears on job applications is an inquiry as to whether the applicant has a prior criminal conviction. It’s a question that presents a “no-win” proposition to an applicant with a prior criminal record:

  • An honest response can immediately eliminate the applicant from further consideration.
  • Answering falsely can blow up in the applicant’s face if the employer performs a criminal background check.

In October 2015, the City of New York enacted the Fair Chance Act, which prohibits employers with four or more employees from inquiring about prior criminal convictions before making an offer of employment. Under the Act, an employer cannot run job ads with statements like “no felonies” or “must pass a background check.” Their job applications cannot contain any questions about criminal history, nor may they ask about criminal history during job interviews.

Once a conditional offer of employment has been extended, an employer may perform a criminal background check.

Under Section 23-A of the New York Correction Law, if a background check reveals a prior criminal history, the employer must consider:

  • The specific duties and responsibilities of the prospective job.
  • The bearing, if any, of the person’s criminal record on her or his fitness or ability to perform one or more of the job’s duties or responsibilities.
  • The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the arrest or conviction itself.
  • The age of the applicant when the events that led to his or her conviction occurred.
  • The seriousness of the applicant’s conviction record, judged by the applicant’s conduct. (Note that the Commission does not consider convictions for possession or sale of a controlled substance to be particularly serious.)
  • Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct. Because you are required to consider this information, you must affirmatively request it from applicants.
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
  • If an applicant has a certificate of relief from disabilities or a certificate of good conduct, you must presume s/he is rehabilitated. [1]

Following a background check an employer must disclose to the applicant the exact information used to determine the existence of a criminal record, including the date and time it was accessed and the name of the employee who accessed it. A copy of a background report, internet search, or public record search must be provided. If the employer relied upon oral information, the employer must summarize the information obtained in writing.

An employer is required to give the applicant at least three business days, from when an applicant is advised, to gather any information necessary to respond. The job must be held open for the applicant during this three-day period.

As of May 2017, 27 states and over 150 cities and counties have enacted similar legislation. [2] In New York State, it is illegal under NYS Human Rights Law section 296(15) for employers to discriminate based on criminal convictions, subject to NYS Corrections Law sections 752 and 753 which requires employers to look to see if there is a connection between the conviction and the job applied for, rather than summarily denying the applicant simply because he or she has a criminal record of any kind. [3]

Similar policies have been enacted in states such as California, Illinois, Maryland, Massachusetts, Ohio, Pennsylvania, Virginia and Wisconsin. Employers that fail to follow these “ban the box” laws may be liable for damages and/or penalties. Therefore, it is critical that employers check state and local laws and review their policies accordingly.

[1] Fair Chance Act: Fact Sheet for Employers

[2] Rodriguez, Michelle N., and Beth Avery. “Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies.” Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies |. National Employment Law Project, 01 May 2017. Web. 30 May 2017.

[3] Everything You Need To Know About Ban The Box In New York |.” Criminal Record Sealing in New York State. New York Sealing Law, n.d. Web. 30 May 2017

Alan Krystal


Alan Krystal

Alan H. Krystal, P.C.
631 780 6555