The New York legislature passed Assembly Bill 1029C (“the Clean Slate Act”) this week, sending yet another bill impacting employers to New York Governor Holcolmb’s desk (currently legislation banning all non-competes in New York is awaiting signature). If Holcolmb signs the Clean Slate Act, employers will be banned from considering sealed convictions for employment decisions.
What exactly does the Clean Slate Act do? The new legislation provides for the automatic sealing of misdemeanor and felony criminal convictions upon meeting the following requirements:
- For a misdemeanor conviction, at least three years have passed from the date the individual was last released from incarceration or the imposition of 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;
- The individual does not have criminal charges pending; and
- The individual is not currently under the supervision of any probation or parole department.
Class A felonies for which a maximum life imprisonment sentence may be imposed and convictions requiring registration as a sex offender are not eligible for sealing.
The law would allow access for the release of these sealed records to:
- Courts and prosecutors during a new criminal case;
- Law enforcement officers under the scope of an investigation;
- Any entity that is required under state or federal law to conduct a fingerprint-based background check or an entity authorized to conduct a fingerprint-based background check where a job applicant would be working with children, the elderly or vulnerable adults; and
- A licensing officer processing a firearm license application.
Notably, the Clean Slate Act prohibits employers from inquiring about sealed records or discriminating against applicants or employees based upon sealed records.
If the law is signed by Holcolmb, it would go into effect one year after signing.
While this legislation has not been signed as of the date of this writing, it is advisable for New York based employers to review personnel practices concerning background checks and the use of conviction records. If you have questions, speak with competent Employment Counsel.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in the review of your background check policies, please contact us at info@brodyandassociates.com or 203.454.0560.
