Anywhere in New York State, employers with 10 or more employees aren’t allowed to automatically reject job applicants solely because they’ve been convicted of a crime. As we’ve said before, employers must evaluate specific factors before making a hiring decision. These include:
- The nature of the offense and its relationship to the job duties,
- The time that has passed since the conviction,
- The candidate’s age at the time of the offense,
- Evidence of rehabilitation or good conduct, and
- The safety and welfare of the general public.
In addition to this State law, several cities in New York such as Buffalo, Rochester, and New York City, have their own fair employment screening ordinances that impose additional restrictions. Understanding the differences between these laws is essential for compliance, especially if a company operates in multiple locations across New York State.
Buffalo: Fair Employment Screening Ordinance
Buffalo’s Fair Employment Screening Law, found in Article V of the City Code, prohibits certain questions. Employers can’t ask about a job applicant’s criminal record on preliminary job applications. An employer may ask about criminal history only:
- After the first interview has taken place, or
- If there’s no interview, after informing the applicant that a background check will be conducted.
The City of Buffalo defines a conviction as any sentence imposed by a court where someone is found guilty, whether by verdict or plea. This includes a jail sentence, a suspended sentence, probation, an unconditional discharge, or sending someone to a diversion program.
The Buffalo ordinance applies to employers that (1) operate within Buffalo city limits and (2) employ 15 or more people.
Companies and organizations that don’t need to follow the law – which is called being exempted from the city ordinance – include:
- Police and fire departments,
- Public or private schools, and
- Public or private services for children, young adults, seniors, or individuals with disabilities
Penalties for Violations
- $500 fine for a first offense,
- $1,000 fine for each subsequent offense, and/or
- Possible civil lawsuits, including injunctions and monetary damages.
Rochester: Local Fair Hiring Law
Rochester’s Fair Chance to Work ordinance shares many similarities with Buffalo’s local law but differs in some important ways.
The Rochester law applies to:
- Employers with four or more employees and
- Businesses where the primary work location is within Rochester city limits
Employers may ask about criminal conviction only:
- After the initial interview or
- After a conditional offer of employment has been made.
If there’s no interview, the employer must let the job applicant know – before employment begins – whether a criminal background check will be done.
Rochester’s definition of conviction is limited to guilty pleas or guilty verdicts for misdemeanors or felonies committed anywhere, in or out of New York State.
Unlike Buffalo’s ordinance, Rochester’s law doesn’t explicitly exempt schools or providers of care for children, seniors, or individuals with disabilities. But these types of positions may still be exempt from the dictates of the ordinance under State laws such as Public Health Law § 2899-a or General Business Law § 74(2). It’s best to check with your human resources attorney for clarity.
New York City: The Fair Chance Act
The Fair Chance Act (FCA), which is part of the New York City Human Rights Law, sets clear rules around when and how criminal records can be considered during hiring.
Prior to extending a conditional offer of employment, an employer can’t:
- Ask about arrests or convictions on job ads or applications,
- Run background checks, or
- Discuss criminal history during interviews.
Even if a candidate volunteers this information early on, the prospective employer can’t consider it until after a job offer has been made.
Obviously, that’s easier said than done. But it’s the law.
Once a company has made a conditional offer of employment, it can ask about criminal convictions or pending cases (with some limitations), run a background check, consider the person’s criminal history, but only by following specific legal steps.
In New York City, an employer can’t ever consider:
- Arrests that didn’t lead to convictions,
- Sealed or expunged records,
- Youthful offender or juvenile delinquent findings, and
- Minor violations like disorderly conduct.
Thinking of Withdrawing An Offer? Here’s What to Do And Not Do
- Evaluate the record using the Fair Chance analysis (based on New York City and State laws),
- Share your written evaluation and background check with the candidate, and
- Hold the job open for at least five business days for the candidate’s response.
This is a significant burden for a small business. Indeed, the company then has to reconsider the candidate’s application in light of any new information he provides. Then, the employer has to provide a final decision, and it’s got to be in writing.
Fairly Evaluating Someone’s Criminal History
New York City employers can withdraw a job offer only if:
- There’s a direct connection between the crime and the job or
- Hiring the person would create an unreasonable safety risk.
The employer must consider these factors, and it’s important to document any analysis:
- Time since the offense,
- The applicant’s age at the time,
- Rehabilitation efforts,
- How the offense relates to job duties, and
- Certificates of relief or good conduct.
The FCA also prohibits employers from automatically disciplining or terminating an employee because of a new arrest or conviction. When this happens, it can be a surprise and cause significant concern. However, employers must conduct the same Fair Chance analysis, considering job performance and safety risks.
Does This Apply to Your Company?
If your NYC-based company has four or more employees (including the owner), it’s likely covered under the City ordinance. Exemptions exist for certain jobs, such as some government and policing jobs. For more info on exemptions, check the NYC Commission on Human Rights website.
Penalties
Employers that violate the New York City Fair Chance Act can be liable for the person’s back pay, front pay, compensatory damages, and punitive damages. Courts that review these claims are guided by certain factors in assessing the penalties:
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- The severity of the violation,
- The existence of prior or contemporaneous violations,
- The employer’s size, considering total number of employees and revenue, and
- Whether the employer knew or should have known about the FCA.
Key Takeaways for Employers
As an employer, especially one operating in multiple cities, staying compliant with these overlapping laws is essential. Best practices include:
- Review and revise job applications to remove criminal history questions before the interview stage,
- Train hiring managers and other personnel about when and how they can ask about criminal convictions,
- If you don’t have an interview process, notify applicants that the company will perform a criminal background check prior to their start date, and
- Consult your attorney or HR professional to confirm that your hiring process complies with both local and New York State requirements.
Fair employment screening laws reflect a growing effort to give individuals with prior convictions a better opportunity to compete for jobs. Understanding the rules avoids costly penalties. It also can expand access to a broader and more diverse talent pool, especially in a tight labor market.
The Clean Slate Act
With the creation of New York’s Clean Slate Act in 2024, most felony and misdemeanor convictions eventually will be automatically sealed after a certain period of time. For misdemeanors, it’s three years after sentencing or after release, whichever is later. For felonies, it’s eight years after sentencing or after release, whichever is later.
This law shouldn’t have a huge impact on employers since, once the records are sealed, no information will be revealed in most criminal background checks. All the same, it’s important to continue to comply with local and State fair employment screening laws and not ask about any prior convictions.
If you have any questions or concerns about compliance, please reach out at 716.839.9700 or info@coppolalegal.com. We’re always happy to help.
