December 24, 2024
As of November 16, 2024, the New York Clean Slate Act has taken full effect. This Act significantly changes the background check process and how New York employers treat criminal history. With the Act already in effect, employers should ensure they have adjusted their policies or do so immediately if they have not made necessary changes.
The New York Clean Slate Act amended the Criminal Procedure Law Section 160.57. This section now requires the automatic sealing of certain criminal records after an established waiting period. The law exempts convictions for sex offenses, sexually violent crimes, and non-drug related Class A felonies.
According to the New York Clean Slate Act, the courts must seal eligible misdemeanor convictions three years after the individual’s release from incarceration or sentencing in the absence of incarceration. Felony convictions have an eight-year waiting period after the individual’s release from incarceration or sentencing in the absence of incarceration.
However, individuals under probation or parole for the applicable offense cannot seal their records. Those with another charge pending in New York or under qualified conditions in other jurisdictions cannot seal their records either. Furthermore, employers required by law to perform fingerprint background checks will maintain access to sealed information under the New York Clean Slate Act.
Employers often require fingerprint-based background checks. These checks apply to more positions than those working with the elderly, children, or other vulnerable populations. Aside from those requiring fingerprint-based background checks, the New York Clean Slate Act also addressed employers that do not require fingerprint-based checks but can access these sealed records.
In such cases, they have a duty of care to the job applicants, meaning they cannot reveal sealed information without the individual’s consent. Revealing the information can cause the individual injury. As such, knowingly and willingly breaching their duty of care can lead to lawsuits if the breach proves a substantial factor in the individual’s suffering.
The New York Clean Slate Act also amended the New York Human Rights law. Now, the law bans employers from asking about or taking adverse action against job applicants or employees based on sealed convictions. Though this complies with the Act, the Act also provided an exception for employers who accessed the sealed convictions per the Clean Slate Act’s requirements.
The Act also amends New York Executive Law to require employers to provide notice when running a criminal background check. Entities that receive criminal history information about an applicant or employee must send a copy to the involved individual. They must also include a copy of Article 23-A of the New York Correction Law and inform the person of their right to ask for corrections of any inaccurate information. Employers must provide this notice when they receive criminal history information, whether or not they are denying employment or taking adverse action based on the information.
The New York Clean Slate Act includes a defense for employers facing negligent hiring claims when applicable. Criminal history sealed under the Clean Slate Act cannot become evidence of negligence against an employer. However, this ban applies only if the employer did not obtain the information during a background check due to its sealed status.