NYC: “‘Ban the Box’ bill worries businesses”

by Walter Olson on August 24, 2014

Lawyers are warning that a bill to restrict consideration of criminal records in business hiring now pending in New York City would be even more burdensome to business than similar bills enacted in other cities and states, applying, for example, to businesses with as few as four employees, a lower threshold than usual. [Crain's] The bill prohibits inquiry about criminal record until after a provisional job offer is made, at which point a reluctant employer must withdraw the offer, painting a large “Sue Me” target on its chest.

To be able to reject an applicant because of 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, [Reed Smith's Mark] Goldstein said….

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

In the bill’s current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.

More: Nick Fishman, Employee Screen on unusually burdensome provisions of San Francisco “ban the box” law (“Employers can’t just sit back anymore and think that these laws are benign. At the least, they are creating an administrative nightmare. At worst, the plaintiff’s attorneys are standing by waiting for your first misstep.”)

{ 8 comments… read them below or add one }

1 C 08.24.14 at 11:18 am

The bill prohibits inquiry about criminal record until after a provisional job offer is made, at which point a reluctant employer must withdraw the offer, painting a large “Sue Me” target on its chest.

Don’t get me wrong, I’m not in favor of the bill. I think employers should be able to reject an applicant for almost any reason except stuff like race. Criminal record is relevant.

But you’re making it sound like you’d prefer it if the employer could just get away with breaking the law by hiding their true reasons, and I can’t go along with that.

2 bob 08.24.14 at 2:06 pm

C – under the FCRA the employer already has to notify the applicant if a criminal record is the reason for rejection. These “ban the box” ordinances simply make it more expensive to reject an applicant/conditional employee and help the P’s bar bring failure to hire suits. There will always be a question of fact regarding how the conviction is related to the job. So, it’s a nice transfer of income to convicts without the state having to lift a finger. Cracks me up – government can do whatever it wants regarding applicants, but not private employers. And of course, if the employer hires someone with a record and that individual injures someone, the employer is STILL going to be held liable. And people wonder why employers don’t want to hire – typical.

3 Stephen Macklin 08.24.14 at 2:35 pm

I guess that answers the question “would I ever want to open a business in NYC?”

4 ras 08.24.14 at 2:47 pm

Why or why would any biz – even the big ones promised subsidies to move to NYC – consider locating in that city if they have a choice? Madness.

5 Boblipton 08.24.14 at 4:26 pm

What could the legislature’s actions on behalf of ex-convicts be based on? Could it be a favor to the people who vote for them? A desire to make sure the legislators can find jobs after they retire from office? Perhaps they have carefully analyzed the situation and realized that if crooks can’t find jobs in private industry, they’ll go into politics and put the current crop of Albany pols out of work.

Bob

6 Robert 08.24.14 at 8:46 pm

So this means that applicants who are in demographic groups more likely to have be incarcerated, or people with gaps on their resume that can’t be verified (“I took a year off to travel/write a novel, etc”) will have even less of a chance to be hired because it’s too burdensome to do a criminal background check.

7 Hugo S. Cunningham 08.24.14 at 9:47 pm

@ras–
If enough customers willing to pay high prices are to be found in NYC, then dumb laws like this (and related insurance premiums) are a tolerable cost of doing business.

8 DensityDuck 08.25.14 at 3:33 pm

I dunno. Someone who had a joint in their car when a cop searched it five years ago is an ex-con. Someone who blew a .19 at a DUI checkpoint is an ex-con. Someone who groped a sophomore when they were a senior is an ex-con. Someone who answered an SEC auditor’s question in a way that wasn’t letter-perfect is an ex-con.

There are all kinds of ways that someone in America can become an ex-con. Not all of them are the result of armed robbery with ag assault.

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