United States: Upstate N.Y. Employers Brace For New Workplace Regulations

It is no secret that, through the efforts of the New York City (NYC) Council and Mayor Bill de Blasio, NYC has in the past few years become home to some of the nation's most generous and protective workplace laws. It now appears that the progressive agenda in NYC has worked its way to upstate New York. This article will discuss several of the more progressive workplace measures recently adopted in upstate enclaves.

Buffalo and Rochester Pass "Ban the Box" Laws

Buffalo and Rochester recently enacted background check legislation commonly known by the moniker "ban the box": regulations that bar certain pre-employment inquiries into a job applicant's criminal history. Buffalo's ordinance, which took effect January 1, 2014, bars employers from asking job candidates about their criminal pasts during the application process and prior to the first interview. If the employer does not conduct an interview, it must inform the candidate whether a criminal background check will be conducted before employment commences. The ordinance applies to entities with 15 or more employees.

In Rochester, employers are prohibited from making a criminal history inquiry until after the initial interview or until a conditional offer of employment has been extended. As in Buffalo, if an employer does not conduct an interview, it must inform the applicant whether a criminal background check will be conducted before employment is to begin. The ordinance, which took effect November 18, 2014, applies to all employers with four or more employees. Both cities' regulations contain several exceptions, including ones for law enforcement agencies.

Any criminal background inquiries made in accordance with the Buffalo or Rochester ordinances must also comply with New York state law, which prohibits employers from taking adverse employment actions based on an applicant's or employee's criminal conviction, unless: (1) there is a direct relationship between the prior criminal offense and the specific job sought or held; or (2) hiring the individual would pose an unreasonable risk to property or the public. Employers must undertake a fact-based analysis, set forth in Article 23-A of the state's Correction Law, to evaluate whether there is a direct relationship between the job and the prior criminal activity.

Erie County Requires Certification of Compliance with Equal Pay Laws

On November 6, 2014, Erie County Executive Mark C. Poloncarz signed an Executive Order (the Order) requiring that all proposed county contractors submit an "Erie County Equal Pay Certification indicating their compliance with federal and state Equal Pay Laws prior to entering into a contract with Erie County." The Order, intended to ensure that men and women receive equal pay for equal work, defines "Equal Pay Laws" as the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Federal Executive Order 11246 of September 24, 1965, and section 194 of New York State Labor Law.

The Order also requires potential contractors to confirm that they have not been subject to an adverse finding under the Equal Pay Laws within the prior five-year period, and to disclose any pending claims against them under the Equal Pay Laws. In addition, the Order specifies that a contractor's violation of any of the Equal Pay Laws during the period of its contract with the county, or the filing of a false or misleading Certification, may be grounds for termination of the contract or disqualification of the contractor from future county contracts. Finally, the Order directs the county's Division of Equal Employment Opportunity to establish a procedure for "compliance monitoring and periodic auditing of certification records." The Order takes effect January 1, 2015.

What Does This Mean for My Company?

Local legislators are no longer willing to sit back and wait for their federal and state counterparts to enact what they perceive to be necessary workplace regulations. The flurry of legislative activity in upstate New York signals that employers statewide need to brace for continued progressive legislation. Businesses from Buffalo to Montauk should therefore consult with counsel now to ensure compliance with current laws and to prepare for future legislation.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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