New York’s Clean Slate Act takes effect this fall

Have you ever been convicted of a crime? It’s a standard question on job applications, but this fall, how people answer that question will change thanks to a new state law. New York’s Clean Slate Act goes into effect on Nov. 16. In short, the act is an automatic civil sealing bill that means criminal convictions — in many but not all cases — will be automatically sealed after a waiting period of eight years for felonies and three years for misdemeanors. Once Clean Slate is in effect, those with convictions eligible and sealed under Clean Slate no longer must disclose the conviction on job applications. “It doesn’t change what an employer can ask, it changes what the applicant’s answer is,” says Michael Sciotti, a labor and employment lawyer with Barclay Damon LLP’s Syracuse office. “You go from employers knowing the background of their applicants to an employer not knowing they hired a convicted felon.” The Clean Slate Act (www.cleanslateny.org) is not a blanket erasure of past convictions, Sciotti notes. First off, to even be eligible, the people convicted must have served all their probation time, jail time, period of parole — they must have completed all the components of their sentence. And those three-year and eight-year clocks don’t start ticking until those obligations are met. The people with criminal records also can’t have any other pending criminal cases during that time period. If so, the clock would start all over again, making it unlikely repeat offenders would qualify. Some convictions such as those for sex offenses, sexually violent offenses, class A felonies other than drug-related convictions, and out-of-state or federal convictions can never be sealed under Clean Slate  What does it mean for a conviction record to be sealed? It means it’s no longer available for most civil purposes and no longer showing up on background checks for those purposes. The intent of the law is to give those who have served their sentences and put any criminal ways behind them a fair chance to get a job or education or find a place to live, Sciotti says. “It sort of takes these criminal records out of the equation.” Conviction records will remain available for certain types of jobs including law-enforcement positions, at entities required by law to conduct a fingerprint-based background check, at employers authorized to conduct a fingerprint-based background check because they work with children or vulnerable adults, jobs overseen by the New York State Department of Education, and at private transportation companies like Uber and Lyft. Records are not sealed for purposes like gun licenses and the Department of Motor Vehicles. Sealed convictions are still visible to a person’s lawyer along with prosecutors and the court if a person is arrested again. What does this mean for employers? The basic process of hiring employees does not change, Sciotti says, but employers may want to use the time between now and November to evaluate things. While it may be harder for someone to now argue they weren’t hired due to a past conviction if their record has been sealed under Clean Slate, Sciotti notes, it’s a good idea to go over the interview process and make sure it’s the same for all applicants. Ask the same general questions of all applicants, he says. If candidates start volunteering additional information — especially if it’s information a potential employer is not allowed to ask for — immediately advise the applicant to stop and only provide answers to the questions asked, Sciotti adds. During the interview process, Sciotti recommends taking good notes. List each of the questions asked of applicants and note their answers, and at the end of it all, hire the person who is most qualified or the best fit for the job. The Clean Slate Act doesn’t do much to change the hiring process, Sciotti admits, but it does raise concerns from employers that they could inadvertently hire someone with a conviction for a conflicting position — like hiring someone who committed a financial crime for a financial position. Employers can seek to avoid such conflicts by looking for employment gaps in an applicant’s resume or an employment history that doesn’t list dates and ask why. But ultimately, Sciotti says, the goal of the Clean Slate Act is to open opportunities to people who have served their time and put any criminal choices behind them. “If a person deserves a second shot, then give it to them,” he says. When the Clean Slate Act goes into effect, courts and various agencies will have up to three years to seal eligible conviction records. All eligible convictions must be sealed by November 2027.