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Government Contractor Compliance & Regulatory Update

Syracuse “Bans the Box” for City Contractors

Posted in Discrimination, Employment Law

Effective March 22, 2015, Syracuse has “banned the box” for any person that enters into a service contract or concession agreement with the City, or otherwise supplies goods and/or services to, or on behalf of, the City.  “Ban the box” refers to a growing movement at the state and local levels of government requiring employers to remove the check box on job applications that ask whether the applicant has ever been convicted of a crime.

Although many of these laws only apply to public employers, several local ordinances have banned the box for government contractors in particular, including in Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN), Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY), and Pittsburgh (PA).  Delaware and Madison (WI) have “encouraged” the same.

Six states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and eleven localities— Baltimore (MD), Buffalo (NY), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—also have “banned the box” for private employers (either expressly or implicitly covering government contractors).  Moreover, “ban the box” and non-ban-the-box jurisdictions alike have imposed limitations on the types of criminal records that employers (including government contractors) may ask about or otherwise consider.

By imposing notice obligations and steep penalties for non-compliance on contractors, Syracuse’s ordinance is among the more strict ban-the-box laws.

Key Provisions

Syracuse’s ordinance specifically prohibits contractors from making any criminal history inquiries during the “application process.”  Under the ordinance, the application process begins when the applicant inquires about employment and ends when an employer has extended a conditional offer to the applicant.

The ordinance goes beyond “banning the box.”  Before a contractor can rescind a conditional offer of employment based on an applicant’s criminal history, it must:

  • provide the applicant with a copy of the “criminal history report,” notify the applicant of the intention to revoke, and “highlight” or “identify” the convictions warranting the rescission;
  • (i) comply with New York State’s Correction Law Article 23-A (which requires employers to engage in a multi-factor analysis of whether a sufficient nexus exists between the offense and position sought), and (ii) afford the applicant at least 5 business days to provide information and/or documentation pertaining to the Article 23-A factors; and
  • review all of the information and/or documentation furnished by the applicant.

These obligations apply whether or not the employer received the criminal history report from a third-party vendor known as a consumer reporting agency.

The ordinance does not (i) apply to inquiries or adverse actions specifically authorized or imposed by applicable law, or (ii) affect any right a contractor may have with respect to an “intentional misrepresentation” made by an applicant in connection with his or her application for employment.

Enforcement and Penalty

The City has the authority to suspend and terminate any contract or agreement in violation of the ordinance.  An “aggrieved” person may file suit in court with the promise of damages, attorney’s fees, and injunctive relief.  Corporation counsel also may bring an action to restrain or prevent violations of the ordinance and to seek penalties ranging from $500-$1,000. The Mayor of Syracuse may temporarily suspend (for a period of no longer than 3 months unless otherwise extended by the city council) the applicability of the ordinance to any prospective or current contractor when based on “a specific exigent circumstance or public emergency condition.”