Original Posting Date: 11/19/2024
“The New York State Clean Slate Act (“Clean Slate Act”) takes effect Saturday, November 16, 2024. Littler previously summarized the requirements of the statute when it passed the state legislature and was signed by Governor Hochul last year. In short, to relieve the barriers to employment for persons with criminal convictions, the Clean Slate Act automatically seals misdemeanor and certain felony criminal records, as follows:
- Misdemeanors are sealed three years from the individual’s release from prison or from the imposition of sentence if there was no incarceration; and
- Felonies are sealed eight years after release from prison or from the imposition of sentence if there was no incarceration.
The Clean Slate Act exempts certain categories of serious offenses, and does not seal the following convictions:
- Class A felonies (very serious felonies including murder, treason, arson, terrorism kidnapping—excluding certain Class A drug convictions);
- Sexually Violent Offenses; and
- 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 required by state or federal law to conduct a fingerprint-based background check or where 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 where the individual has a criminal charge pending, is on probation, or is under parole supervision when the time period for automatic sealing occurs.” (Littler)
Frequently Asked Questions Website
What the Clean Slate Act does
This law will automatically seal certain criminal records after a required waiting period – three years after conviction or release from jail for a misdemeanor and eight years after conviction or release from prison for a felony – provided they have maintained a clean record and are no longer on probation or parole.
To protect public safety and ensure we are sealing the records of people who have truly committed to turning their lives around, there are instances where people will not be eligible for sealing. Those with pending criminal charges, who are required to register as a sex offender, who received a life sentence, or who have been convicted of a class A felony – like murder – are ineligible to have their records sealed under Clean Slate.
Importantly, this law still provides access to otherwise sealed records for certain necessary and relevant purposes, including:
- law enforcement purposes.
- licensing or employment for specific industries where a criminal background check is required to be performed.
- employment where a fingerprint-based background is performed.
- extending employment to a person in jobs where they may work with such groups as children, the elderly or other vulnerable populations.
- when an individual is seeking a gun license, a commercial driver’s license, or where required for public housing.
https://nyassembly.gov/cleanslate/?sec=what_it_does
7 Considerations for The Fair Credit Reporting Act (FCRA)
The Fair Credit Reporting Act (FCRA) provides employers guidance and regulations on how we can obtain and handle criminal history background checks. Organizations that conduct background checks and utilize a third-party vendor must communicate to the applicant or employee in writing, that the background check will be conducted and obtain written authorization to obtain records. Organizations must comply with state and local laws regarding the background checks and current reporting mechanisms.
Below are 7 considerations for The Fair Credit Reporting Act:
- Written Notice: Ensure you are providing a written notice that a background check will be conducted, and the information will be used when making an employment decision. Ensure transparency and proactively communication. Third-parties should have these forms to use or modify what to add into the written notice. SHRM has templates available as well for organizations to use. A Google search cut, and paste is not a recommended solution to the written notice language or organization policy.
- Applicants Consent: Prior to starting the background check, ensure you obtain written consent to obtain the check and investigative summary report(s).
- Communication with Third-Party: Utilize the tools and resources of the third-party to certify the individual’s permission. These tools should follow current FCRA, local and state regulations. This should also confirm that the documentation will not be used to discriminate, or any misuse of the information contained in the report.
- Adverse Action: If your organization utilizes the information to make an employment decision based on the background check, provide the individual with a notice of pre-adverse action that includes a copy of the background check results and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” The third-party vendor might have templates for us to use, be consistent and communicate to the applicant. If you do not ask, you will not know the answer. There are examples to use on the SHRM website to review as potential options.
- Five Business Days: Provide five days for the individual to dispute the background check findings before a final decision on employment is rendered.
- Final Decision Reached: If you decide to move in a different direction, provide the applicant or employee with final notice of adverse action. This notice should include name, address, phone number of the consumer reporting company, statement that the company supplied the report did not make the decision to take the unfavorable action and rights to dispute the accuracy of the report. The individual can also request an additional report free from the third-party vendor within 60 days.
- Record Retention: Ensure you retain records consistently under state and federal law. Dispose of records by burning, pulverizing or shredding. Remember destruction of electronic documents as well; emails, PDF’s, etc.
These are just a few considerations for complying with The Fair Credit Reporting Act. There are many templates for us to review through the SHRM website. What if an applicant admits they will have something flagged on their background check prior to running the check? Depending on the organization, regulations, policies and position should provide guidance and a consistent process to determine if we should consider or should not consider an applicant. Having a policy in place that is consistently enforced will help guide your organization through these unique situations and conversations.
Ensure you are using a reputable third-party vendor, that complies with federal, state and local laws and regulations, as well as internal company policies. Laws continue to evolve throughout the country at the federal, state and local level, regarding background checks and “ban-the-box” legislation. Seek guidance prior to implementing a background check process and create an RFP for multiple third-party proposals.
Generate options and select a vendor that fits the needs of your organization. Many third-party vendors specialize in certain industries, they understand specific regulations, especially nonprofit requirements. I’m happy to work with any employer to draft notices, disclosure statements, authorizations, etc. A consist, fair and proactive processes are necessary for all organizations to ensure legally and ethically sound decision making within the organization. Do not forget the “contingent upon” language in the offer letter.
BURR CONSULTING, LLC 