New York’s Clean Slate Act Requires Employers to Update Background Check Processes

New York’s Clean Slate Act is now effective.  The Act will lead to the automatic sealing of certain criminal records and will require greater disclosure by employers of the criminal history they can consider in connection with hiring or other employment decisions. 

First, the Act provides for automatic time-based sealing of certain criminal convictions as follows: 

• The Act provides that the New York State Unified Court System has three years to seal all eligible existing convictions, after which point such convictions will become inaccessible (including to employers conducting background checks). 
• The Act will then automatically seal misdemeanors three years from the individual’s release from prison (or the imposition of the sentence if there was no incarceration), and felonies eight years after the same. 
• Convictions will not be sealed where there are criminal charges pending or the individual is on probation or under parole supervision when the time for automatic sealing occurs.
• Sealing under the Act is limited to criminal records under New York state law; federal convictions and those from other states will not be sealed. 
• Certain crimes are exempt from the Act’s purview. For example, certain convictions including sex offenses, sexually violent offenses, and non-drug related Class-A felonies, including murder, are not eligible for sealing. 
• The Act also permits employers that are required to conduct “fingerprint-based” criminal history checks – including those in the childcare, elder care, and disability care spaces – to continue to have the same access to criminal records (even sealed records) as before the Act was passed. 

Second, the Act creates new background check obligations for New York employers.  The Act appears to require employers that conduct background checks that reveal criminal history information to: (i) provide or ensure the provision of such criminal history information to the individual once the employer receives it; (ii) notify the individual of their right to “seek correction of any incorrect information”; and (iii) provide the individual with a copy of Article 23-A of the New York Correction Law.  In contrast with the pre-Act process, this obligation attaches regardless of whether the employer plans to take adverse action based on the applicant’s criminal history.  Notably, the Act does not change an employer’s obligation to conduct a job-related analysis prior to taking an adverse action based on criminal convictions as required by New York’s Article 23-A, nor does it modify employers’ obligations to comply with any local requirements, including the New York City Fair Chance Act. These new obligations apply in instances where an employer is conducting a background check of an applicant, an employee, or an independent contractor. Employers should also continue to monitor whether the State will provide additional guidance to further clarify the extent of their notice obligations.

Finally, the Act provides both new areas of liability and new defenses to employers: 

• Employers who nonetheless gain knowledge of sealed conviction information (including exempted employers who are still permitted to receive such information) have a duty of care to prevent any unlawful disclosure of sealed convictions.  The Act creates a cause of action against the disclosing entity by a person whose conviction has been unlawfully disclosed, and aggrieved individuals will be able hold employers liable for negligence under Section 50-A of the New York Civil Rights Law if: (i) the employer “knowingly and willfully” breaches that duty of care by disclosing the sealed records without the individual’s consent; (ii) the disclosure causes injury to the individual, and (iii) the employer’s breach of their duty of care was a “substantial factor in the events that caused the injury suffered” by the individual.
• Because many criminal convictions will be sealed, the Act provides employers with an affirmative defense against negligent hiring, retention, and supervision claims, such that potential litigants would be prohibited from introducing an employee’s sealed conviction as evidence of negligence by the employer.

In sum, New York’s already complex background check landscape is getting even trickier.  Employers conducting background checks in New York should consult with counsel to diligently review and update their background check practices to ensure compliance.  As part of this, employers should work with their vendors and internal teams to ensure that they are not receiving information regarding New York convictions that are already sealed, that they are providing individuals with appropriate notices, and that they are not making employment decisions based on any sealed convictions. 

Mintz’s Employment team is monitoring this issue and is here to assist employers in determining how to respond to these developments.

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