New York Clean Slate Act Imposes New Background Check Obligations and Notice Requirements on Employers

The complex requirements employers must navigate to conduct background checks in New York recently expanded with new employer obligations and heightened notice requirements. The New York Clean Slate Act, effective November 16, 2024, prohibits consideration of sealed convictions in employment decisions and, importantly, requires employers to provide applicants and employees with notices related to criminal history information received by the employer.

Background

The Act provides the New York State Unified Court System up to three years, from the effective date above, to seal existing, eligible criminal convictions and, thereafter, requires eligible convictions to be sealed automatically. It also prohibits employers from inquiring about or taking adverse action based on sealed convictions of applicants and employees, except in limited circumstances.

Convictions eligible to be sealed include felony convictions, which are sealed eight years after either the last release from incarceration for that conviction or a sentence that did not include incarceration. Similarly, eligible misdemeanor convictions are sealed three years after the last release from incarceration for that conviction or a sentence that did not include incarceration. Individuals convicted specifically of driving while impaired by alcohol in violation of Section 1192 (1) of the New York Vehicle and Traffic Law, will have their convictions sealed after three years. Certain convictions, including non-drug-related Class A felonies (e.g., murder), sex offenses, and out-of-state or federal convictions are excluded from automatic sealing. Additionally, convictions are not sealed if the individual (1) has a pending criminal charge (though some limited exceptions apply), (2) is under probation or parole for the eligible conviction, or (3) incurs a new conviction before the prior conviction becomes eligible.

Employer Obligations

Employers are prohibited from inquiring into an applicant’s or employee’s sealed convictions. Additionally, employers may not consider sealed convictions when taking adverse employment actions.

The Act does, however, specifically carve out exceptions to this prohibition on inquiry and adverse action. Employers authorized by other federal, state, or local laws to request and receive fingerprint-based background checks or consider sealed convictions may continue to obtain and use such information. Under certain conditions, this may include specific individuals in various fields like financial services, healthcare, and those who work with vulnerable populations (i.e., children, the elderly, or individuals with disabilities). However, even if an employer is permitted to receive or consider such information, they may still face liability for unauthorized disclosures of sealed convictions that harm applicants or employees.

Notice Requirements

Compliance with the Act requires that any time an employer receives “criminal history information” about an applicant or an employee (e.g., in a pre-employment criminal background check), the employer must provide the applicant or employee with (1) a copy of any criminal history information received by the employer, (2) a copy of Article 23-A of the New York Correction Law, and (3) information about the right to correct inaccuracies in the information. Notably, the notice requirements apply to every individual for whom criminal history information is received, regardless of whether the employer intends to take any adverse action based on the criminal history information. This is an  important and noteworthy change from the prior status of the various background check laws, where the criminal history information would only need to be provided if the employer was considering taking an adverse action based on the information contained in the report.

The Clean Slate Act does not define “criminal history information.” However,  another section of the New York Executive Law, where the notice requirement is contained, states that “criminal history information,” means “a record of pending criminal charges, criminal convictions which are not vacated or reversed, and certificates filed pursuant to” certain sections of the New York Correction Law. For prospective employees of nursing homes or home care service agencies, this also includes “information from the federal bureau of investigation as a result of a national criminal history record check.”

These new obligations do not replace the existing notice requirements contained in the Federal or New York State Fair Credit Reporting Acts or the New York City Fair Chance Act that employers must comply with prior to taking adverse action against employees or applicants due to criminal history. Nor does the Clean Slate Act modify or replace the requirements under 23-A of the New York State Correction Law and the New York City Fair Chance Act to conduct a particular analysis of an applicant or employee’s criminal history prior to taking adverse action.

Employer Protections

The Act provides employers with a defense against negligent hiring claims if a sealed conviction was not available for consideration during the hiring process. This complements existing protections under New York law, including the rebuttable presumption in favor of employers who conduct good-faith evaluations under Article 23-A.

Takeaways

Employers should evaluate how criminal history information is being collected and considered in connection with hiring and ongoing employment decisions, and update hiring practices and background check protocols to ensure compliance with the Act. This includes adhering to pre-existing obligations, as well as implementing the Act’s new requirements, particularly with regards to notifying applicants and employees upon receipt of criminal history information. Employers should consult with counsel before taking any employment action after receipt of criminal history information for either applicants or employees.

Employers with questions about how to incorporate the requirements of the Clean Slate Act into existing background check processes should contact Kelly Jines at kjines@fglawllc.com or any other attorney at the Firm.

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