Crain's New York Business: 'Ban the Box' bill worries businesses

Crains New York Business

‘Ban the Box’ bill worries businesses

Chris Bragg | August 20, 2014

A City Council bill barring employers from asking potential hires if they have ever been criminally convicted on job applications is meant to help felons re-enter society.

But the fine print of the initiative could lead to lawsuits against employers, according to one legal expert.

The bill, which is very likely to become law in some form, would prohibit the commonly used “check boxes” on job applications that ask about any past convictions. It would also forbid employers from asking questions about an applicant’s criminal history until a conditional job offer has been tendered.

A number of states around the country have similar laws. But Mark Goldstein, a labor and employment attorney at Reed Smith LLP, says New York City’s would go further because it would cover businesses with as few as four employees—placing new burdens on small employers. New Jersey’s recently passed law, by contrast, applies to businesses with 15 or more workers.

The bigger concern is lawsuits from job-seekers. To be able to reject an applicant over a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, Mr. Goldstein said.

“I think you’d see some increases in litigation, and this is not exactly a well-settled area of law,” he said.

Proponents of the bill say it would simply offer a clearer way for businesses to follow state law requiring employers to go through a multistep test to determine if an applicant’s past criminal behavior correlates with a position being sought.

Additionally, the City Council bill would allow an applicant rejected by an employer for a past crime seven days to respond. The job would have to be held open during that time.

An employer’s failure to adhere to the process could lead to a fine of at least $1,000. In the bill’s current form, the burden of proof in any resulting lawsuit by the job applicant would be on the employer, Mr. Goldstein said.

“Rather than the normal context, we have the burden here shifting,” said Mr. Goldstein. “The burden would be on the employer to present clear and convincing evidence that it had not engaged in unlawful discrimination.”

The bill in the City Council would not apply to employers in industries that work with vulnerable populations, such as children and the elderly, where state law allows past criminal convictions to disqualify job applicants.

Alyssa Aguilera, political director of VOCAL-NY, a community organizing group that backs the bill, said the legislation is intended to combat discrimination prospective employees with criminal records face when trying to get a job. “They’ve paid their debt, and now that they’re out, one of the proven factors in reducing recidivism is regular employment,” she said.

Former Mayor Michael Bloomberg in 2011 implemented new standards banning the “check boxes” on job applications for city employees. His successor, Mayor Bill de Blasio, came out last year in his campaign policy book in support of expanding the standard to the private sector.

Advocates are now awaiting action from Brooklyn Councilwoman Darlene Mealy, who chairs the Committee on Civil Rights, but has not held a hearing since April. If Ms. Mealy does have a hearing soon, under new council rules, committee members would likely be able to force a vote, Ms. Aguilera said. The bill currently has 35 co-sponsors, a strong majority of the chamber’s 51 members.

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