New York State Enacts Legislation Sealing Criminal Records

Seyfarth Synopsis: On November 16, 2023, New York became the 12^th state to enact “Clean Slate” legislation, which allows certain criminal records to be sealed after an individual is sentenced or released from incarceration, provided that they have not subsequently been convicted of an additional criminal act.  With an effective date of November 16, 2024, employers may be required to review or modify their hiring practices and other employment decisions.

On November 16, 2023, New York Governor Kathy Hochul signed new legislation, known as the “Clean Slate Act” (S.7551A/A.1029C), that seals criminal records after an individual is sentenced or released from incarceration, if the individual has not been subsequently convicted of an additional criminal act and is no longer subject to probation or parole.  It is intended to allow individuals who have previously been incarcerated to seek employment, housing, and educational opportunities.  This law will prohibit employers from inquiring about, or discriminating against, applicants’ sealed criminal records.

The law provides the New York State Office of Court Administration up to three years to implement the processes necessary to identify and seal all eligible records.  Below are key aspects that may require New York employers to review or modify their hiring practices and other employment decisions.

• Requirements For Sealed Records: Certain misdemeanor convictions will be sealed three years after incarceration, or the imposition of the sentence if there was no sentence of incarceration. Certain felony convictions will be sealed eight years after incarceration, or the imposition of the sentence if there was no sentence of incarceration.
  
  Notably, records will not be sealed until parole or probation is complete.  Further, if the applicant is charged with another criminal charge before the waiting period is complete, the record will not be sealed.

• Ineligible Convictions: The legislation does not seal records for those convicted of sex crimes, murder, or other non-drug Class A felonies. The legislation does not cover criminal convictions under federal law or any other state law.
• Employer Inquiry: The Clean Slate Act amends the New York Human Rights Law to make it an unlawful discriminatory practice for employers to inquire, or use, sealed convictions pursuant to the Clean Slate Act, against applicants or employees.
• Disclosure to Employer: If an employer requests or requires information sealed by the Clean Slate Act, employees can respond as if the criminal record did not exist, unless the employer is exempt (see below).
• Situations Where Applicants Must Still Report: In some situations, inquiries into otherwise sealed records are allowed. These situations include:
  • Courts and prosecutors involved in a new criminal case;
  • Law enforcement officers during the course of an investigation;
  • Employers permitted or required by law to perform fingerprint-background checks on job applicants;
  • Employers that are legally required to conduct background checks for jobs involving children, the elderly, or other vulnerable populations;
  • The hiring of police and peace officers; and
  • A licensing officer processing a firearm license application
• Employer Liability in Civil Actions: Sealed records of an employee, pursuant to the Clean Slate Act, can not be introduced as evidence of negligence against the person or entity that provided them employment, contract labor or services, or volunteer work, if the record was not otherwise provided to the person or entity by a governmental entity.  A government entity may provide this information in response to an authorized and timely request for conviction history information, in accordance with the Clean Slate Act.

It is unclear whether records that are sealed will be removed from public access in New York.  New York employers should consider reviewing their onboarding and background check policies and practices to take any necessary steps toward compliance in advance of the Clean Slate Act’s effective date.  Seyfarth will continue to provides updates in the event of further guidance or insights to aid in compliance.