New York state’s Clean Slate Act, which took effect Nov. 16, passed the state legislature and was signed by Gov. Kathy Hochul last year. In short, the Clean Slate Act seeks to relieve the barriers to employment for people with criminal convictions by sealing misdemeanor and certain felony criminal records as follows:
- Misdemeanors are sealed three years following the individual’s release from prison or from the imposition of a sentence if there was no incarceration.
- Felonies are sealed eight years after the individual’s release from prison or from the imposition of a sentence if there was no incarceration.
The Clean Slate Act exempts certain categories of serious offenses, and it does not seal the following convictions:
- Class A felonies (very serious felonies including murder, treason, arson, terrorism, and kidnapping—excluding certain Class A drug convictions).
- Sexually violent offenses.
- Sex crimes.
Critical to employers in New York state, the Clean Slate Act prohibits employers from making any inquiry regarding automatically sealed convictions or making any adverse decision concerning an individual’s employment based on automatically sealed convictions. Employers remain permitted to access and consider sealed convictions in making employment decisions when state or federal law requires them to conduct a fingerprint-based background check or when they are authorized to conduct a fingerprint-based background check because the applicant would be working with children, the elderly, or vulnerable adults.
The Clean Slate Act is limited to criminal records under New York state law. Federal offenses and records of convictions in other states are not sealed. Further, convictions will not be sealed in situations where an individual has a criminal charge pending, is on probation, or is under parole supervision when the time period for automatic sealing occurs.
However, under the law, anyone receiving sealed criminal conviction information has a duty of care to prevent unlawful disclosure of a sealed conviction. The act creates a cause of action against the disclosing entity by a person who has been harmed by the unlawful disclosure of their sealed criminal history.
Employers conducting criminal background checks covering New York convictions of applicants for employment, independent contractors, or current employees must now be diligent to ensure their criminal background check practices comply with the Clean Slate Act. Specifically, employers performing background checks should consult with employment counsel to help reduce the risk of violating the Clean Slate Act. They should also immediately take steps to confirm that they are not receiving information regarding automatically sealed New York convictions or making decisions based on sealed convictions.
Stephen A. Fuchs and Michael Paglialonga are attorneys with Littler in New York City. © 2024 Littler. All rights reserved. Reposted with permission.
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