On Nov. 16, 2023, New York State Gov. Kathy Hochul signed legislation, also known as the Clean Slate Act, to automatically seal from public access criminal records for most individuals convicted of a crime.
The Act takes effect in one year, on Nov. 16, 2024, and its key intent is to increase employment opportunities for individuals with criminal histories who have no recent criminal convictions. The law amends New York’s criminal procedure law, the executive law, the correction law, the judiciary law and the civil rights law with respect to the automatic sealing of select convictions. New York follows several other states, such as California, Connecticut, Colorado, Pennsylvania, Oklahoma and Utah, who have also enacted similar laws.
To be eligible for automatic sealing of their records, individuals must complete their sentences (including probation or parole time) and do not reoffend within a stipulated period of time. This statutory period ranges from three years for misdemeanors to eight years for eligible felonies. The clock restarts if parole or probation is revoked or if there is a new conviction. All records of sex crimes, and Class A felonies (such as first or second-degree murder, first degree kidnapping), except those related to drug possession, are ineligible for sealing.
The law provides for several exceptions where sealed records could still be accessed and used for law enforcement, in criminal proceedings under certain circumstances, and other necessary purposes such as determining suitability for various licenses, and for employment and other activities where federal or state law requires or authorizes a criminal background check to be performed prior to granting licenses to or employing individuals in certain jobs.
Busting Myths
Myth: The law will erase all criminal records. Fact Check:The law automatically seals certain criminal records but does not expunge them. Notably, the Clean Slate Act would only seal convictions under New York's penal law. The Act would not seal criminal convictions under federal law or the criminal law of any state other than New York. Sealing is not automatic when the convicted individual has a criminal charge pending or is on probation or under parole supervision when the statutory time period for automatic sealing elapses.
Myth: Law enforcement will not have access to criminal records. Fact Check: Records automatically sealed under this Act could still be accessed and used by law enforcement for permissible purposes including to assess the employment of law enforcement officers, or when conducting investigations.
Myth: Background checks for vulnerable populations, such as children, the disabled and the elderly, are now compromised because employers can hire individuals with criminal records. Fact Check: Entities, including those that work with children, the elderly or vulnerable adults, that are required or authorized by law to conduct a fingerprint-based background check, are not impacted by the Clean Slate Act. Under the Act, such background checks are considered relevant and necessary prior to the employment of individuals working with these vulnerable populations and will include criminal records which have been sealed under this Act. The Act will also not seal the records of individuals who are required to register as a sex offender.
Myth: Gun licenses will be issued without a proper background check. Fact Check:The law does not apply when licensing officers are processing a firearm license application. In this instance, the criminal records will not be sealed.
Myth: Individuals who have a criminal record may get preferential treatment for a job over an individual with no criminal record. Fact Check: New York state law prohibits discrimination against an individual because of their criminal conviction status. The Clean Slate Act does not impact this protected status. This means that New York employers cannot make employment decisions such as terminating a current employee or refusing to hire an applicant because of their pre-employment criminal conviction record. Article 23-A of the New York State Correction Law provides an exception to this rule, where an employer may still deny employment based on a criminal conviction record if the employer can establish a direct relationship between one or more of the previous criminal offenses and the specific employment sought; or where there is an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public. Employers must consider several factors when making the above determination. New York City employers must also consider the intersection of the Fair Chance Act, which prescribes additional requirements for inquiring about or making decisions based on an individual’s criminal record. Once the Clean Slate Act is in effect, employers should be aware of their additional obligations under New York state law. For example, employers should not consider sealed criminal records in employment decisions. Further, employers that receive unsealed criminal records in response to a request for criminal conviction history should provide the employee or applicant with a copy of the criminal records received, a copy of Article-23 of the New York State Correction Law and notice to the employee or applicant of their right to correct any incorrect information pursuant to the regulations and procedures established by the Division of Criminal Justice Services. Legal counsel is recommended when considering criminal conviction history in employment decisions.
Myth: Sealed conviction records can later be used against an employer as evidence of employer negligence. Fact Check:The Clean Slate Act provides that a conviction record that was sealed pursuant to the Act and was not provided to an employer upon request for conviction record history cannot be introduced as evidence of negligence against the employer.
Considerations for Healthcare and Human Services Employers
For healthcare and human services employers, the Clean Slate Act broadly preserves access to criminal records where federal and state statutes have previously required such employers to screen potential employees in the interest of protecting patients or service recipient safety. Depending on their specific regulatory requirements, employers may be required to perform various background checks such as a Criminal History Record Check, a Staff Exclusion List (SEL) clearance through the New York State Justice Center, and the Statewide Central Register (SCR) database check through the New York State Office of Children and Family Services. As part of these checks, employers will be able to access permissible criminal records, including records that were automatically sealed under the Clean Slate Act.
As detailed above, the existing provisions of Corrections Law Article 23-A, continues to apply to any employer using such records in its employment decisions, including the requirement that there be a nexus between the prior criminal conduct and the reason an employer chooses not to employ a particular person.
Next Steps
Employers should review and update policies specifically related to hiring, background screening, use of conviction records and nondiscrimination policies. Once the law is effective, it is recommended that employers consult with legal counsel prior to taking an employment action in New York State based upon an individual's criminal history.
If you have any questions about the information presented in this information memo, please contact Natalie Vogel, Roger Bearden, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.
Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.
Every employer wants to promote and sustain a safe workplace. One way in which employers try to accomplish this goal is to conduct background checks on its applicants or new hires to assess whether they might pose a risk to other employees, customers, or other individuals they might encounter during their employment. However, when inquiring about applicants’ criminal histories or arrest records and when basing employment decisions on information obtained through background checks, employers should make sure that they are in compliance with relevant federal, state, and local laws.
On October 10, 2017, the Albany County Legislature amended its County Human Rights Law by passing a law prohibiting all Albany County employers (entities with 4 or more employees) and employment agencies from doing any of the following:
Screening job applicants based on their current wages and benefits or other compensation or salary history.
Requiring that an applicant’s prior wages satisfy minimum or maximum criteria.
Requesting an applicant’s prior wages or salary history or requiring an applicant to provide that information as a condition of being interviewed or considered for employment.
Seeking the applicant’s salary history from a current or former employer.
County Executive McCoy signed the law on November 6, 2017. The law goes into effect thirty (30) days after it is filed with the New York Secretary of State.
The law does provide one exception: an employer or employment agency may confirm prior wages (including benefits or other compensation or salary history) after the employer extends an offer of employment, with the applicant’s written authorization.
Albany County’s law, like similar legislation enacted in other jurisdictions, aims to eliminate the wage gap between women and men. These laws are becoming a growing trend. As we have previously reported, New York City, Massachusetts, Puerto Rico, and Philadelphia have all passed similar prohibitions.
Albany County employers (including employers with offices in Albany County) should immediately remove all salary history inquiries from their job applications. In addition, Human Resources personnel and management employees who are involved in the hiring process should be immediately notified of the new law. As this prohibition continues to gain momentum, employers should keep abreast of further legislative action in other geographical areas as well.
In blog posts on April 11 and May 10, we explained a piece of legislation that will ban nearly all New York City employers from: (1) asking job applicants about their compensation history; and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract. This post serves as a friendly reminder that the law will take full effect on Tuesday, October 31, 2017.
In an April 11 blog post, we explained a piece of legislation that will soon ban nearly all New York City employers from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract. At the time we reported on that legislation, Mayor De Blasio had not yet signed it. New York City employers should be aware that Mayor de Blasio has now signed that legislation into law and it will take full effect on October 31, 2017.
On April 7, 2017, the New York City Council approved legislation that will ban almost all employers in New York City from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract, unless that applicant freely volunteers such information. Mayor de Blasio has not yet signed the bill, but he is expected to do so; once he does, the new legislation will become effective 180 days from that date. Job applicants who allege a violation of this provision may file a complaint with the New York City Commission on Human Rights or directly in court. This law will even prohibit employers from conducting searches of publicly available records for the purpose of obtaining an applicant’s salary history. Employers will be permitted, however, to ask about an applicant’s salary and benefits expectations. Further, if a job applicant volunteers his or her compensation history, the law will not prohibit employers from verifying and considering such information. The ban will also not apply to: (1) actions taken pursuant to any law that authorizes the disclosure or verification of salary history; (2) internal transfers or promotions; and (3) public employee positions for which compensation is determined pursuant to procedures established by collective bargaining. New York City is not the first to pass such a law. In the last 8 months, Massachusetts, Puerto Rico, and Philadelphia have all implemented similar bans on questions about compensation history. Proponents of these laws argue that the bans will help erase pay inequity and will especially help those who have been historically underpaid. Opponents argue that such government action constitutes unconstitutional infringement on free speech rights. In any case, New York City employers should put their Human Resources personnel, and any others involved in the hiring process, on notice about the imminent change in law. All employers, not just those with employees in New York City, should be mindful of the trend of lawmakers seeking to keep compensation history out of the hiring process and should expect this trend to continue.
Following a national trend to "ban the box" on job applications, on February 13, 2017, the Albany County Legislature passed legislation prohibiting Albany County from inquiring about an applicant’s criminal conviction history until after the applicant receives a conditional offer of employment. The new law, entitled the "Albany County Fair Chance Act," also requires the County to post a disclaimer on job announcements and position descriptions for positions that necessitate an inquiry into the applicant’s criminal history or a background check. If the position for which an applicant is being considered requires inquiry into the applicant’s criminal history, and the result of this inquiry leads to a revocation of the conditional offer, the County must provide the individual with an adverse action notice containing the County’s basis for the decision, a copy of the conviction history report, a notation of the conviction(s) that form the basis of the action, and information on how to appeal the decision. The Act will be enforced by the Albany County Department of Human Resources, and will be effective immediately upon filing in the Office of the Secretary of State.
The applicability of this legislation is extremely narrow: only Albany County itself is subject to its requirements and restrictions. Municipalities and private entities doing business in Albany County are not covered by the law.
Other New York State municipalities have also passed "ban the box" legislation. For additional information regarding "ban the box" legislation applicable to New York City, Syracuse, Rochester, and Buffalo, please click on the link for each municipality.
On June 10, 2015, the New York City Council passed the Fair Chance Act, which amends the New York City Human Rights Law to prohibit most employers in New York City from making any inquiries about an applicant's pending arrest or criminal conviction record until after a conditional offer of employment has been made. The law is expected to be signed by Mayor Bill de Blasio, and will become effective 120 days after it is signed. The law applies to employers with four or more employees, with some exceptions. For example, the law does not apply to actions taken by an employer pursuant to any state, federal, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. The law also does not apply to actions taken by an employer with regard to an applicant for employment as a police officer or peace officer. The law prohibits covered employers from making an inquiry or statement regarding the pending arrest or criminal conviction record of an applicant until after the employer has extended a conditional offer of employment. The term "inquiry" is defined to include not only questions communicated to an applicant in writing or otherwise, but also any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant's criminal background information. After a conditional offer of employment has been made, an employer may inquire about the applicant's arrest or criminal conviction record, but may not take any adverse employment action based on the results of the inquiry unless the employer complies with the following requirements:
The employer must provide a written copy of the inquiry to the applicant in a manner to be determined by the New York City Commission on Human Rights;
The employer must analyze the various factors under New York Correction Law Article 23-A to determine whether the applicant should be disqualified from employment;
The employer must provide a copy of the analysis and any documents in support of the determination to the applicant in a manner to be determined by the New York City Commission on Human Rights; and
The employer must give the applicant at least three business days to respond and must hold the position open for the applicant during the response period.
In addition to prohibiting pre-offer inquiries about an applicant's arrest or criminal conviction record, the Fair Chance Act prohibits employers from publishing any job advertisements or solicitations stating either implicitly or explicitly that an applicant's arrest or criminal conviction record will limit the applicant's opportunity to be considered for the job. In preparation for this new law, covered employers in New York City should take the following steps: (1) review their employment applications and remove any inquiries about an applicant's arrest or conviction record; (2) review their procedures for conducting background checks to ensure that any criminal background checks are not conducted until after a conditional offer of employment has been made; and (3) make sure that all managers and supervisors who conduct interviews or who are otherwise involved in the hiring process are well-trained to avoid asking questions or making statements about an applicant's arrest or criminal conviction record. Editor's Note: Our thanks to John Boyd, one of Bond's Summer Law Clerks, who helped prepare this article.
In follow-up to our April 21 post, New York City Mayor Bill de Blasio signed into law an amendment to the New York City Human Rights Law on May 6, prohibiting employment discrimination on the basis of “consumer credit history.” The amendment makes it an “unlawful discriminatory practice” for an employer to use an applicant's or employee’s consumer credit history when making hiring and other employment decisions, and to otherwise discriminate against an applicant or employee on the basis of his or her consumer credit history. The law goes into effect on September 3, 2015, and applies to most private sector employers in New York City. Under this new amendment, most private New York City employers may only consider an applicant's or employee’s consumer credit history for the following types of positions:
Positions that are non-clerical and have regular access to trade secrets;
Positions with “signatory authority over third party funds or assets valued at $10,000 or more”;
Positions that “involve a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer”;
Positions where job duties regularly include the modification of digital security systems designed to protect the employer’s or client’s networks or databases;
Positions with access to information relating to criminal investigations or national security; and
Positions legally required to be bonded.
There are also exceptions for positions in public agencies, and for employers who are legally required to obtain an applicant's or employee’s consumer credit information. “Consumer credit history” is broadly defined as information relating to an individual’s “credit worthiness, credit standing, credit capacity, or payment history,” including information obtained from credit reporting agencies, as well as information gathered directly by the employer from the applicant or employee, such as whether the individual has items in collections, or has filed for bankruptcy. The enforcement and remedy provisions of this new amendment are the same as for other types of discrimination under the New York City Human Rights Law, meaning aggrieved applicants or employees may file a lawsuit for damages in court, or file a complaint directly with the New York City Commission on Human Rights. Private New York City employers who gather and use an individual’s consumer credit history during hiring or when making other employment decisions should revise such policies. Such information may only be considered when the position held by an employee or sought by an applicant fits into one of the exceptions listed above.
On April 16, 2015, the New York City Council overwhelmingly passed an amendment to the New York City Human Rights Law that would bar most city employers from using credit checks as part of their hiring process. Supporters of the bill argue that in most cases, an applicant’s consumer credit history has no direct correlation to their job performance, and an employer’s use of credit checks in hiring could have an adverse impact on minority job applicants, who are more likely to have poor credit histories.
Similar to Article 23-A of the New York Correction Law, however, the bill does include exemptions for certain professions where there is, in fact, a direct relationship between a person’s credit history and his/her fitness or ability to perform the job. Exempted professions include high-level executives who have financial authority over company or third-party funds or assets worth more than $10,000, elected officials, police officers, and workers who are required to have security clearance under federal or state law, such as those having access to intelligence, national security information, or trade secrets. By focusing employer exemptions on particular job duties as opposed to excluding entire industries, such as banks, this bill has broader coverage than similar laws in other jurisdictions.
If the amendment is signed into law by Mayor de Blasio, New York City would join 10 states and Chicago in barring employer credit checks in hiring.
As the social media phenomenon continues to dominate our culture and its use has become second-nature, it is worthwhile to revisit some of the issues presented by an employer's use of social media, particularly in the context of hiring.
Social media presents a unique workplace conundrum. On one hand, employees generally believe that their use of social media outside of work is none of their employer’s business. However, employers need to make employment decisions based on the best available information, which sometimes includes information an employee or potential employee shares on social media. In the context of hiring, a candidate’s social media page can provide invaluable insight into the candidate’s character. Generally, people tend to be much more candid on social media than they would be during a job interview, and, as the saying goes, “a picture is worth a thousand words.”
While there are currently no laws prohibiting New York employers from accessing an applicant’s social media information during the hiring process, there are potential legal pitfalls depending on how a candidate’s social media information is accessed, what information is obtained, and what information is considered when making a hiring decision. Social media sites contain a lot of information that employers are legally prohibited from considering during the hiring process (e.g., age, sexual orientation, race, religion, ethnicity, etc.). Simply possessing this type of knowledge about a candidate could ruin an otherwise well-based decision not to hire an individual, because it could create an inference that this information was part of the basis for the decision. Thus, employers that use social media as a hiring tool must exercise caution and take the appropriate steps to address these concerns.
At the outset, an employer should determine whether a social media search will be conducted as part of the hiring process, and if so, develop a policy regarding the use of social media in hiring. The policy should address what positions the search will be used for, the scope of the search, and when the search will occur, which is ideally later in the process to limit the number of candidates who are affected. The policy should also clearly identify what information will not be looked at or considered (i.e., protected characteristics), and what will be reported to those involved in hiring. Employers must ensure that this policy is distributed and communicated to hiring managers, and that they understand the purpose of the policy. As with any other policy, it is important that it is followed and applied consistently.
With respect to implementation of the policy, it is imperative that direct hiring managers do not access social media as part of the hiring process. A non-decision-maker should conduct the search and report only relevant, non-protected information to the decision-maker. To ensure this process is effective, the non-decision-maker conducting the search must understand what information the employer is legally prohibited from using when making a hiring decision.
An employer should never access any site that they have not been authorized to access, nor should employers require a candidate to provide them with access to their personal social media accounts. As reported in our April 28, 2012 blog post, legislation was introduced in the New York State Senate that was intended to prohibit employers from failing to hire an applicant based on his/her refusal to provide login information to the employer. Although this bill has not been passed, it is still the best practice to refrain from requiring candidates to provide access to their social media accounts as part of the application process, or as a condition of an offer of employment. In fact, multistate employers should be aware that at least 18 states, including Arkansas, California, Colorado, Delaware, Illinois, Louisiana, Maryland, Michigan, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, and Washington, have enacted legislation regulating an employer’s social media activity, most of which contain prohibitions against requiring applicants or employees to provide the employer with his/her personal login information. Further, employers should not falsify information or impersonate an individual to gain access to the page. In other words, an employer must not ask an employee who is “friends” with a candidate to access his/her page. As a rule of thumb, only view information that is open to the public.
Employers should attempt to verify information before relying on it. Employers should also document and retain the information obtained in the search, including the search criteria and the information considered as a basis for their hiring decisions.
