Katherine Gavett, Esq.On November 16, 2023, Governor Hochul signed into law the Clean Slate Act which automatically seals criminal records for certain crimes. The law (effective next year), provides that misdemeanors are sealed after three years and felonies are sealed after eight years. There are also exceptions to this law – a person may not be on probation or parole and cannot have any pending criminal cases. Additionally, certain crimes such as Class A felonies are excluded, and even sealed convictions will remain accessible for specific reasons, such as evaluation for gun licenses and positions in education.
This is one of several laws designed to assist those with a criminal record in finding employment. It is a violation of the New York Human Rights Law for employers to discriminate against an employee or applicant on the basis of his/her criminal record. Additionally, employers cannot ask or make decisions about applicants on the basis of a youthful offender adjudication, sealed record, an arrest not resulting in a conviction, or ACD.
The law further provides that employers may only deny an applicant employment based on a criminal record if the conviction is “directly related to the functions of the job or if the employer determines that hiring the person would pose an unreasonable risk to person or property”. Significantly, before denying an applicant, the employer must consider several factors identified by the State. Failure to perform this specific analysis, even if the analysis would have resulted in a denial of the position, exposes an employer to potential liability.
There are also stringent requirements surrounding criminal background checks in both New York and at the Federal level. The recent passage of the Clean Slate Act is a reminder of the many obligations of an employer when evaluating a candidate or employee.
