Alongside 11 other states since 2018, New York has developed and passed “clean slate” legislation that automatically seals certain criminal records to create new opportunities for individuals with past criminal convictions to secure employment. The New York Clean Slate Act will take effect on November 16th, 2024, and includes a number of provisions and conditions that relate to qualifying waiting periods, offense types, parole status, and other factors. Although the law provides certain benefits to job seekers and businesses, employers need to be aware of the legal implications and how it affects their background check procedures.
Here we’ll explore the key provisions of the NY Clean Slate law, outlining who qualifies for automatic sealing, which benefits the law provides for job seekers & employers, and how employers can prepare for long-term hiring law compliance.
The New York Clean Slate Act was passed with the goal of supporting over 2 million New Yorkers with conviction records in securing gainful employment and renewed access to education and housing opportunities necessary to contribute to their communities.
The Act makes New York residents eligible to have their conviction records automatically sealed after a post-sentencing period of 8 years for felonies and 3 years for misdemeanors. These timeframes do not include time incarcerated. The individual must have completed parole, probation, or post-release supervision to be eligible, and they are ineligible for automatic sealing if they were convicted of any crimes during the three- or eight-year waiting period.
Most convictions under New York state law are eligible for sealing, excluding sex offenses (sex crimes and sexually violent offenses), as well as Class A felonies (with the exception of drug-related convictions). The law only affects criminal convictions under New York state law and does not enable record sealing for federal crimes or most out-of-state convictions (excluding charges related to reproductive health care, gender-affirming care, or the possession of cannabis, which are not considered felonies under New York state law). If an individual is still under probation, parole supervision, or has criminal charges pending, they are ineligible for record sealing. If an individual has both an eligible conviction and an ineligible conviction, the eligible conviction may still be sealed.
After conviction records have been automatically sealed, they are no longer accessible for most civil purposes, including background checks. In some cases, they are still accessible to courts, prosecutors, law enforcement, or during gun licensing. Some employers are also still eligible to access these records, including entities hiring police or peace officers, as well as government-regulated jobs that require a fingerprint-based background check and in some positions where an applicant will be working with vulnerable adults, the elderly, or children.
This updated NY criminal record sealing policy significantly impacts employers who rely on pre-employment criminal background screening. Background screenings may now exclude certain information regarding a candidate’s past convictions and – in compliance with New York State’s Human Rights Law – applicants who are directly asked about sealed convictions can legally deny that they have ever been convicted of a crime once it has been automatically sealed. Unsealed conviction records for serious or recent offenses will still appear, however, as will information regarding ongoing probation or parole periods.
For any convictions that still appear, employers must abide by obligations and fair hiring practices outlined in the federal Fair Credit Reporting Act (FCRA) as well as the provisions of New York’s Correction Law. According to state law, an employer may not make an employment decision based on an unsealed criminal conviction unless there is a “direct relationship” between job responsibilities and the criminal offense, or if the offense poses a demonstrable threat to the safety and welfare of certain individuals or the general public.
Establishing reasonable timelines for law-abiding individuals with past convictions to have their offenses automatically sealed, the New York Clean Slate Act increases access to jobs, higher education, housing, and other opportunities for a large number of New Yorkers. Research published in the Harvard Law Review demonstrates that a similar clean slate law in Michigan enabled those with records cleared for one year to obtain employment at an 11% higher rate, earn 22% higher wages, and remain offense-free at a higher rate than the general public over a five-year period.
The Act ensures increased opportunities for fair employment while keeping reasonable provisions in place to protect employers and increase state-wide earnings and economic growth. For job seekers with past convictions seeking additional information about how the legislation impacts their search for employment, the New York State United Court System offers extensive resources to support utilization of record sealing when an individual qualifies. Individuals with past offenses should be aware, however, that the Office of Court Administration will have a three-year period to implement the processes necessary to identify and seal eligible records.
For both private and public sector employers navigating local, state, and federal hiring laws, the New York State Clean Slate Act necessitates updates to background check procedures to ensure long-term compliance. Here we’ll discuss best practices for compliant hiring and the importance of training HR teams regarding any changes and new responsibilities.
Under the new law, employers now have the following obligations:
With the passage of the New York State Clean Slate Act, it is possible that ineligible or still-unsealed convictions will appear on a candidate’s background screening, in which case the offenses are still valid for job-related analysis and possible disqualification. The New York Clean State Act does not alter an employer’s legal responsibility to stay compliant with federal laws, or any local laws, such as New York City’s Fair Chance Act, which includes conducting a Fair Chance Analysis for any candidate.
With significant legal changes impacting New York employers, it’s essential to prepare your organization for long-term compliance by providing updated HR training and working with a qualified background screening provider that can adapt in real-time.
The Orsus Group offers comprehensive background screening and verification services, as well as HR consulting and training to help your organization make informed and timely hiring decisions while remaining fully compliant with shifting labor laws.
Schedule a consultation today to ensure your hiring practices are compliant with the New York Clean Slate Act and other New York expungement and hiring laws.