[HISTORY: Adopted by the Rockland County Legislature as indicated
in article histories. Amendments noted where applicable.]
[Adopted 5-4-2021 by L.L. No. 2-2021]
This article shall be known as the "Rockland County Fair Chance
in Employment Act."
A.
There are approximately 70,000,000 U.S. adults with arrest or conviction
records, many of whom are turned away from jobs despite their skills
and qualifications. Delaying the criminal history inquiry until after
a conditional offer of employment is a simple policy change that diminishes
hiring obstacles and creates a fair chance and opportunity to compete
for jobs. This allows employers to judge applicants on their qualifications
first, without the stigma of a record.
B.
Numerous research studies have shown that removing job barriers for
people with criminal records helps the economy and is good for business
because allowing people to work increases their tax contributions,
boosts sales tax and saves money by keeping people out of the criminal
justice system. Secondly, fair chance legislation improves public
safety because holding a job is the single most important factor in
decreasing recidivism. Lastly, children and families benefit when
people with criminal histories can find work. Nearly 700,000 people
in the United States return to our communities each year from incarceration.
When parents cannot find work, they are unable to provide the basic
necessities for their families and many struggle to pay child support,
face barriers in regaining custody of their children and experience
trouble rebuilding relationships with family, further diminishing
their support network.
C.
It should be noted that while fair chance policies benefit everyone
in the community, these policies have an especially positive effect
on communities of color. Nationally, African Americans and Latinos
are arrested in numbers and incarcerated at rates disproportionate
to their numbers in the general population. In New York, African Americans
are 9.4 times more likely than their white counterparts to be incarcerated
and Latinos are 4.5 times more likely than whites to be incarcerated.
A 2012 EEOC guidance on the consideration of arrest and conviction
records in employment decisions found that criminal record exclusions
have a disparate impact based on race and national origin. Fair chance
policies, such as the local law being proposed here, are meant to
diminish these barriers and address the additional level of discrimination
faced by people of color when they apply for employment.
D.
According to numerous studies conducted by the National Law Employment
Law Project ("NELP"), fair chance ("Ban-the-Box") policies have been
successful in helping people with criminal records to obtain employment.
Nationwide, over 36 states and over 150 cities and counties have implemented
fair chance policies. Data collected from several localities shows
an increase in hiring people with records which further supports the
idea that personal contact with an applicant reduces the negative
effect of a criminal record on the employment decision. In New York
alone, 14 localities including Albany County, Buffalo, Dutchess County,
Ithaca, Kingston, Westchester County, Newburgh, New York City, Rochester,
Syracuse, Suffolk County, Tompkins County, Ulster County, Woodstock
and Yonkers have all implemented some kind of fair chance law.
E.
The Rockland County Legislature finds that removing unfair obstacles
to employment is beneficial for individuals, families and communities,
increases public safety and contributes to a strong economy. The intent
of this legislation is to put Rockland County residents back to work,
give people a fair chance to become gainfully employed, improve public
safety by reducing recidivism and stimulate the economy by putting
in place this successful policy. This article will ensure that job
seekers are first evaluated on their merits and not their past mistakes.
For the purposes of this title, the following definitions shall
apply to the following terms:
Refers to any action that negatively affects the terms and
conditions of employment.
Refers to persons seeking initial employment, and current
employees who are seeking or being considered for promotions or transfers.
Refers to the process required under this article to comply
with Article 23-A of the New York Correction Law.
Any day except for Saturdays, Sundays, and all legal holidays
of the County of Rockland.
For purposes of establishing when an applicant's criminal
history can be considered by an employer, refers to an offer of employment,
promotion or transfer.
Refers to records of an individual's conviction of a
felony, misdemeanor, or unsealed violation as defined by New York
law or federal law, or the law of the state in which the individual
was convicted.
Refers to when an employer, employment agency or agent thereof
(1) asks a person, orally or in writing, whether they have a criminal
record; or (2) searches for publicly available records, including
through a third party, such as a consumer reporting agency, the internet,
or private database, for a person's criminal history.
Refers to records of an individual's convictions, unsealed
violations, non-convictions, and/or currently pending criminal case(s).
Refers to all employers in Rockland County having 15 or more
employees.
Refers to any person undertaking to procure employees or
opportunities to work.
Refers to any oral or written question asked for the purpose
of obtaining a person's criminal history, including, without
limitation, questions in a job interview about an applicant's
criminal history, and any search for a person's criminal history,
including through the services of a third party, such as a consumer
reporting agency.
Any arrest or criminal accusation, not currently pending,
that was concluded in one of the following ways: (1) termination in
favor of the individual, as defined by New York Criminal Procedure
Law ("CPL") § 160.50, even if not sealed; (2) adjudication
as a youthful offender, as defined by CPL § 720.35, even
if not sealed; (3) conviction of a non-criminal offense that has been
sealed under CPL § 160.55; or (4) convictions that have
been sealed under CPL § 160.58. Also includes a disposition
of a criminal matter under federal law or the law of another state
that results in a status comparable to a "non-conviction" under New
York law as defined herein.
Refers to any communication made, orally or in writing, to
a person for the purpose of obtaining criminal history, including,
without limitation, stating that a background check is required for
a position.
A.
Arrest and conviction records; employment.
(1)
It shall be an unlawful discriminatory practice for an employer,
employment agency or agent thereof to:
(a)
Declare, print or circulate or cause to be declared, printed
or circulated any solicitation, advertisement or publication, which
expresses, directly or indirectly, any limitation, or specification
in employment based on a person's arrest or criminal conviction;
(b)
Represent that any employment or position is not available to
someone because of that person's arrest or criminal conviction,
when in fact it is available to such a person; and
(c)
Make any inquiry or statement related to the pending arrest
or criminal conviction record of any person who is in the process
of applying for employment with such employer or agent thereof until
after such employer or agent thereof has extended a conditional offer
of employment to the applicant.
(2)
Nothing in this subsection shall prevent an employer, employment
agency or agent thereof from taking adverse action against any employee
or denying employment to any applicant for reasons other than such
employee or applicant's arrest or criminal conviction record.
B.
Exceptions.
(1)
This section shall not apply to any action taken by an employer or
agent thereof pursuant to any state, federal or county law that requires
criminal background checks for employment purposes or bars employment
based on criminal history. For purposes of this subsection, "federal
law" shall include rules or regulations promulgated by a self-regulatory
organization as defined in Section 3(a)(26) of the Securities and
Exchange Act of 1934, as amended.
(2)
This section shall not apply to any actions taken by an employer
or agent thereof with regard to an applicant for employment as a police
officer or peace officer, as those terms are defined in Subdivisions
33 and 34 of Section 1.20 of the Criminal Procedure Law, respectively,
or at a law enforcement agency as that term is used in Article 23-a
of the Correction Law.
(3)
This section shall not apply to any Rockland County positions designated
by the Commissioner of Personnel as exempt, and not already exempted
pursuant to another provision, because the position involves law enforcement,
is susceptible to bribery or other corruption; or entails the provision
of services to, or the safeguarding of, people vulnerable to abuse.
If a position is deemed to be exempt by the Commissioner of Personnel,
applicants may be asked about their conviction history at any time
during the hiring process.
A.
Should an employer, employment agency or agent thereof wish to withdraw
its conditional offer of employment or take an adverse employment
action based on an applicant's or employee's conviction
history, the employer, employment agency or agent thereof must engage
in an analysis of pertinent factors and follow all requirements pursuant
to Article 23-A of the Correction Law.
B.
In addition to the requirements of Article 23-A of the Correction
Law, employers shall be required to:
(1)
Provide a written copy of any inquiry made to collect information
about criminal history to the applicant;
(2)
Provide a written copy of the Article 23-A analysis to the applicant;
(3)
Inform the applicant that they will be given a reasonable time to
respond to the employer's concerns, which shall be no less than
three business days, and during this time hold the position open for
the applicant;
(4)
Consider any additional information provided by the applicant during
this period, including but not limited to oral or written evidence
of rehabilitation; and
(5)
Communicate any final decision revoking a conditional offer of employment
or taking adverse employment action in writing to the applicant or
employee within three business days.
A.
The provisions of this article shall be enforceable against public
agencies by a proceeding brought pursuant to Article 78 of the Civil
Practice Law and Rules, and the provisions of this article shall be
enforceable against private employers in a manner determined by the
Commissioner of Human Rights.
B.
Fines and penalties will be assessed in accordance with the following
penalty schedule:
|
Employer Size
|
First Offense
|
Second Violation
|
|---|---|---|
|
15 to 25 employees
|
$1,000
|
$5,000
|
|
26 to 50 employees
|
$3,500
|
$10,000
|
C.
For employers with greater than 50 employees, the types of civil
penalties and size of fines will be guided by the severity of the
particular violation, the existence of additional or contemporaneous
violations, and whether the employer knew or should have known about
the requirements of this Act.
A.
Any person aggrieved by a violation of this article may commence
a civil action or proceeding for injunctive relief, damages, and other
appropriate relief in law or in equity against a person or employer
who violates this article in the New York State Supreme Court within
three years of the discriminatory act. In any such action or proceeding,
the court, in its discretion, may allow for the party commencing such
action or proceeding, if such a party prevails, a reasonable attorney's
fee as part of the costs.
B.
Any person aggrieved by a violation of this article may file a complaint
with the Rockland County Commissioner of Human Rights within one year
of the discriminatory act. Such complaint shall be in writing on a
form prescribed by the Commissioner of Human Rights.
A.
The Commissioner of Human Rights, with input from the Department
of Law, shall establish an administrative procedure, memorialized
in the rules and regulations, for the enforcement and timely resolution
of complaints filed under this article. These rules and regulations
shall provide a detailed procedure for the following:
The Commissioner of Human Rights shall engage in outreach and
education efforts regarding the rights of current and prospective
employees, and the responsibilities of employers, established by this
article. Such outreach and education shall be directed at public and
private employers and the general public.
This article shall be construed liberally for the accomplishment
of its purposes.
If any clause, sentence, paragraph or part of this article or
the application thereof to any person or circumstances, shall, for
any reason, be adjudged by a court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the
remainder of this article.
This article shall take effect 60 days after filing with the
New York State Secretary of State.
