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Policy Update: What the Clean Slate Act Means for NYS Employers

As a leading background screening solution provider, Authentica always aims to keep our clients informed on new legislation that affects criminal background screenings. Today, we have provided some information on the NYS Clean Slate Act and how it will affect NYS background screenings and employers who run them below.

NYS Clean Slate Act Quick Facts

  • Goes into effect November 16, 2024
  • The New York State Office of Court Administration will have up to three (3) years to seal eligible conviction records that pre-date the enactment of the Act.
  • The Act is designed to promote second-chance hiring and is consistent with New York’s long-standing public policy encouraging employment for persons with past criminal convictions.
  • Under the Act, the conviction records of individuals convicted of certain state crimes will be sealed from public access once they have satisfied their sentence and remain law-abiding citizens for a specified time.
  • This legislation is not intended to affect, nor will it change, access to permissible information on out-of-state or federal convictions through publicly accessible records.
  • The Act does not modify employers’ federal Fair Credit Reporting Act obligations.

Eligible vs Not Eligible Convictions

Eligible: An individual will be given a clean slate (i.e., automatic sealing of misdemeanor and felony criminal convictions) upon meeting the following requirements:

  • For a misdemeanor conviction, at least three years have passed since the individual’s release from incarceration or the imposition of a sentence if there was no sentence of incarceration.
  • For a felony conviction, at least eight years have passed from the date the individual was last released from incarceration, provided:
  • The individual does not have a criminal charge pending; and
  • The individual is not currently under the supervision of any probation or parole department.

Not Eligible: Class A felonies for which a maximum sentence of life imprisonment may be imposed (e.g., murder and domestic terror) and convictions requiring registration as a sex offender.

Clean Slate Act’s impact on employers

The Act will have a significant impact on employers who conduct pre-employment criminal background screenings. Although those screenings are still permitted, they may exclude information regarding an applicant’s past criminal convictions, including convictions that have a direct relationship to the work performed. Convictions for the most serious offenses, recent convictions, and convictions for which the applicant is still on probation or parole will still appear.

The Act also amends New York State’s Human Rights Law to prevent employers from asking applicants about sealed convictions or taking adverse action based on sealed convictions. Applicants asked about sealed convictions may lawfully respond as if the conviction did not occur. Accordingly, applicants whose convictions have been sealed may lawfully answer “No” if asked on the employment application, “Have you ever been convicted of a crime?”

For unsealed convictions, the provisions of New York’s Correction Law still apply; employers may not use an applicant or employee’s unsealed criminal conviction as the basis for an employment decision unless there is a “direct relationship” between the criminal offense and the specific employment, or the conviction presents “an unreasonable risk to property or the safety or welfare of specific individuals or the general public.”

Once this law goes into effect on 11/16/2024, all employers in New York State must send a copy of the completed background check to all new hires/candidates even if they are not disputing any information contained in the report.

Employers should consult with counsel to evaluate their hiring and screening policies in anticipation of the Act’s effective date.

 

To learn more about Authentica, please contact Dominic Oliveri at Dominic.Oliver@Authentica.us
or 585-256-4628.