[HISTORY: Adopted by the Albany County Legislature as indicated
in article histories. Amendments noted where applicable.]
[Adopted 3-6-1970 by L.L.
No. 1-1970]
No person, partnership, agency, firm or corporation, or officer,
employee or agent thereof, shall recruit, procure, supply or refer
any person for employment who customarily and repeatedly offers himself/herself
for employment in place of any employee involved in a labor dispute
in which such person, partnership, agency, firm or corporation is
not directly involved.
No person, partnership, firm or corporation involved in a labor
dispute shall, directly or indirectly:
A.
Employ,
in the place of an employee involved in such dispute, any person who
customarily and repeatedly offers himself/herself for employment in
the place of employees involved in a labor dispute; or
B.
Contract
or arrange with any other person, partnership, agency, firm or corporation
to recruit, procure, supply or refer persons for employment who customarily
and repeatedly offer themselves for employment in place of employees
involved in such labor dispute.
No person who customarily and repeatedly offers himself/herself
for employment in place of employees involved in a labor dispute shall
take or offer to take the place in employment of any employee involved
in a labor dispute.
Any person, partnership, agency, firm or corporation, or any
officer, employee or agent thereof, who or which shall violate any
provisions of this article shall be guilty of a misdemeanor and, upon
conviction thereof, shall be subject to punishment by a fine of not
more than $1,000, or by imprisonment for a period not exceeding six
months, or by both such fine and imprisonment.
[Adopted 2-13-2017 by L.L. No. 1-2017]
This article shall be known as the "Albany County Fair Chance
Act."
The Legislature finds that those with a criminal history regularly
face discrimination in many areas of life, including employment.
The Legislature further finds that studies indicate that stable
employment is one of the best predictors of post-conviction success.
The Legislature further finds that the ability of people with
a criminal history to successfully reintegrate into their communities
and find employment improves public safety and benefits local taxpayers,
as less crime leads to safer communities, strengthens families and
saves taxpayers money on costs associated with law enforcement and
incarceration.
The Legislature determines that those who have been incarcerated
have paid their debt to society and should be considered fully free
men and women. They should not be further punished once they are released
from prison and should be evaluated based on their qualifications
to perform a job rather than their criminal history.
The Legislature determines that people with a criminal history
represent a workforce with skills to contribute and a desire to add
value to their communities.
The Legislature determines that the main goal of a criminal
justice system should be rehabilitation and that once people enter
back into society, they should be treated fairly and without discrimination
based on a prior conviction.
The Legislature finds that job discrimination based on criminal
history can affect anyone, regardless of race, religion, national
origin, gender or sexual orientation. However, African Americans are
disproportionately hurt by discrimination based on criminal history
due to a long history of policies that have led to African Americans
being incarcerated at rates more than five times that of Whites and
more than 2 1/2 times that of Hispanics.
The Legislature determines that due to a criminal justice system
in which minorities are incarcerated at much higher rates than Whites,
African Americans and Hispanics bear the brunt of discrimination based
on criminal history in employment.
The Legislature finds that nine municipalities and two counties
in the State of New York have implemented policies to protect job
applicants against potential discrimination, including the three largest
cities in the state: New York City, Buffalo and Rochester.
The Legislature further finds that over 20 states and over 100
municipalities and counties throughout the United States across all
political lines have implemented policies to protect job applicants
from potential discrimination.
The Legislature further finds that the New York Correction Law
does not prohibit employers from inquiring about criminal history
on job applications. In the application processes where the vast majority
of applications are tossed aside during an initial review for a variety
of reasons, it makes it extremely difficult for an applicant to prove
that he/she was not hired due to his/her criminal history.
Therefore, the purpose of this article is to ensure that everyone
receives a fair chance in seeking employment with Albany County, regardless
of one's arrest record or criminal history.
As used in this article, the following terms shall have the
meanings indicated:
To refuse to hire or promote, to discharge a person or revoke
an applicant's conditional offer of employment.
Any person considered or who requests to be considered for
employment by Albany County.
A record or action by any jurisdiction that does not result
in a conviction, or any encounter with a law enforcement agency that
does not result in a conviction. This includes information indicating
that a person has been questioned, apprehended, taken into custody
or detained, or held for an investigation by a law enforcement, police
or prosecutorial agency.
Any sentence arising from a plea or verdict of guilty, including
a sentence of incarceration, suspended sentence, a sentence of probation
or sentence of unconditional discharge.
The County of Albany, its departments, administrative units
and related agencies.
An individual's prior conviction and/or sentencing.
The County of Albany.
Any occupation, vocation, job or work for pay, including
temporary or seasonal work, contracted work, contingent work and work
through the services of a temporary or other employment agency; or
any form of vocational or educational training, with or without pay.
A.
No employer shall inquire about an applicant's criminal history during
the application process, including any question or "box" on a job
application, question during an interview or any other inquiry. No
employer shall inquire about an applicant's criminal history until
after a conditional offer of employment is made. The employer shall
not inquire about an applicant's arrest record at any point in the
application process, interview process or during any inquiry relating
to criminal history.
B.
No employer shall take adverse action against an individual due to
an individual's criminal history until after a conditional offer of
employment is made.
C.
No employer shall take adverse action against an individual due to
the individual's criminal history unless the employer follows the
regulations and guidelines explained in this article, or unless allowed
by law.
A.
All job announcements and position descriptions shall contain the
following information if the position requires a background check,
unless otherwise noted by law: "This position is subject to a background
check for any convictions deemed related to its duties and responsibilities.
Convictions will be considered but will not automatically disqualify
the candidate. No background check will occur until after a conditional
offer of employment has been made. Any revocation of an offer of employment
due to criminal history will include a clear explanation and instructions
for appeal."
B.
No employer shall use the following criminal records in relation
to a background check: records of arrest not followed by a valid conviction,
sealed, dismissed or expunged convictions, violations and infractions.
A.
After a conditional offer of employment is made, no employer shall
inquire about an applicant's criminal history or conduct a background
check unless the employer has made a good-faith determination that
the relevant position warrants an inquiry into the applicant's criminal
history or a background check is warranted or is required by law.
B.
Prior to conducting a background check or inquiring about an applicant's
criminal history, the employer shall send the applicant a conditional
offer of employment and notice of rights under this article.
C.
After a conditional offer of employment is made, if based on a good-faith
determination the employer has determined that a criminal history
inquiry or background check is warranted or is required by law, the
employer may only take adverse action against the applicant pursuant
to New York Correction Law Article 23-A.
D.
If an employer determines, based on New York Correction Law Article
23-A, that an applicant's conviction history contains information
that warrants adverse action, the employer shall supply the applicant
with an adverse action notice containing the following:
(1)
The conviction item(s) that is (are) the basis for the adverse action.
(2)
A copy of the conviction history report, if any.
(3)
An individualized assessment explaining why the employer believes
that adverse action is appropriate based on the applicant's criminal
history.
(4)
Instructions on how to appeal the adverse action notice.
E.
If an employer sends the applicant an adverse action notice, the
applicant may appeal the adverse action notice by and submitting a
letter of intent to appeal the decision to the Albany County Department
of Human Resources within 10 days of the applicant's receipt of the
adverse action notice. If the applicant chooses to mail a letter,
it must be postmarked within 10 days of the applicant's receipt of
the adverse action notice. If the applicant submits a letter of intent
to appeal the adverse action notice, the applicant shall have 20 additional
days to submit a letter or email to the Albany County Department of
Human Resources containing information rebutting the basis for the
adverse action, including challenging the accuracy of the information,
submitting mitigation or rehabilitation evidence and submitting reference
letters.
F.
Nothing shall prevent an employer from taking adverse action against
any applicant or denying employment for reasons other than such applicant's
criminal conviction record.
The employer shall maintain a record of the number of positions
requiring background checks, and for those positions shall maintain
a record of the number of applicants and the number of applicants
who were provided a conditional offer of employment. In addition,
the employer shall maintain a record of the number of applicants who
were provided an adverse action notice; the number of applicants who
appealed the adverse action notice to the Albany County Department
of Human Resources; and the number of applicants who won adverse action
appeals. The employer shall also maintain a record of the race/ethnicity
and gender of all applicants for all of the required data collection
categories listed above.
The prohibitions of this article shall not apply if inquiries
about an applicant's criminal history, arrest record or other adverse
action are specifically prohibited, authorized or required by any
other applicable law.
A.
The Albany County Department of Human Resources is authorized to
enforce this article, to promulgate additional rules and regulations
and take any and all other reasonable actions necessary to implement
and enforce this article. Any rules and regulations set forth in this
article and/or promulgated by the Albany County Department of Human
Resources shall be made available on the County of Albany website
in a manner approved by the Department of Human Resources.
B.
The Albany County Department of Human Resources shall be responsible
for conducting proper outreach about this article. The Grievance Committee
of the Albany County Legislature shall be responsible for hearing
all appeals to an adverse action notice. Hearings on appeals to adverse
action shall be held before all members of the Grievance Committee
of the Albany County Legislature, and decisions shall be rendered
by a majority of the members of the Grievance Committee. Each member
of the Commission shall receive one vote. The Grievance Committee
of the Albany County Legislature shall consider the employer's adverse
action notice and all information rebutting the basis for adverse
action that the applicant has sent to the Albany County Department
of Human Resources within 20 days of sending the initial letter or
email of intent to appeal the adverse action notice. The employer
and the applicant shall have the opportunity to present their cases
during the hearing. The Grievance Committee of the Albany County Legislature
shall conduct a hearing within 35 days of the Albany County Department
of Human Resources receiving the applicant's intent to appeal the
adverse action notice. The Grievance Committee of the Albany County
Legislature shall render a decision not more than 30 days after the
completion of the hearing.
The Albany County Department of Human Resources shall collect all data described in § 138-11 of this article once every year and release a report to the Albany County Legislature and to the public, to be posted on the County of Albany website, that shall clearly show all data collected. The report shall include an analysis of all data collected in § 138-11 and shall include a racial impact statement.
This article shall be null and void on the day that federal
or statewide legislation goes into effect, incorporating either the
same or substantially similar provisions as are contained in this article,
or in the event that a pertinent state or federal administrative agency
issues and promulgates regulations preempting such action by the County
of Albany. The County Legislature may determine via mere resolution
whether or not identical or substantially similar federal or statewide
legislation, or pertinent preempting state or federal regulations,
have been enacted for the purposes of triggering the provisions of
this section.
