Ban the Box or Pay the Price - Questions About Criminal History Early in the Application Process Lead to Fines

Two of the area’s largest retail stores, Marshall’s and Big Lots, made news yesterday after being fined for violating Buffalo’s Ban the Box law, which prohibits employers from asking job applicants about past criminal history on employment applications.  The law is meant to help those with criminal backgrounds apply for jobs without the risk of being immediately disqualified. HSE Labor and Employment Partner Amy Hemenway spoke with WGRZ Channel 2 and WBFO 88.7 about the law’s implications. 

Ban the box ordinances have gained traction in several local jurisdictions in NYS over the past few years, and are also a growing trend nationally.  Ban the box ordinances are intended to allow applicants for employment an opportunity to be judged based on their qualifications and experience before having to disclose a prior conviction, which some employers might use as a basis to deny employment, even when the conviction is not job related or indicative of the applicant’s ability to perform.

The importance of complying with ban the box requirements is underscored by the recent settlements negotiated between the NYS Attorney General’s office and big box retailers, Marshall’s and Big Lots.  Both retailers were cited for asking about applicants’ prior criminal history on applications for employment, in violation of a ban the box ordinance in the City of Buffalo.  Marshall’s and Big Lots agreed to pay fines of $95,000 and $100,000, respectively.  They also both agreed to remove questions about applicants’ prior criminal history from applications anywhere in NYS, including in jurisdictions that do not otherwise have ban the box ordinances in place.

Although there is no ban the box law at the state level, NYS does have laws in place that prohibit employers from discriminating against applicants and employees based on prior arrest and conviction status, and the federal and state fair credit reporting acts require employers to provide certain notices to applicants and employees if they want to obtain or use information about an individual’s criminal history.  Under these laws, employers can make adverse employment decisions, but they must be thoughtful in doing so, taking into account eight factors enumerated under state law and keeping in mind the public policy in NYS, which favors employment opportunities for individuals who have a prior criminal history.

Feel free to reach out to any one of our labor and employment attorneys if you have any questions about when you can ask applicants about their criminal history, or how you can use any information obtained.  Small adjustments to your recruiting process may help you to avoid heavy fines like those imposed on Marshall’s and Big Lots.

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