On November 16, 2024, the New York Clean Slate Act went into effect. The Act provides for the automatic sealing of a broad swath of criminal convictions after a certain period of time and requires employers to comply with new disclosure obligations when obtaining criminal history information in connection with employment actions.

Sealed convictions

The Act requires the New York State Unified Court System to seal certain criminal convictions no later than November 16, 2027. These include misdemeanor and felony convictions under New York penal law (not federal law), which must be sealed three years and eight years, respectively, after a defendant’s release from incarceration or imposition of sentencing, whichever is later. 

Automatic sealing does not apply to any convictions for sex offenses or non-drug related Class A felony offenses. In addition, records cannot be sealed where a defendant has a subsequent criminal charge pending in New York or any other jurisdiction (with limited exceptions to out-of-state pending charges), or where the defendant is on parole or probation.

Employers authorized by state or federal law may receive sealed conviction information of an applicant or employee where the inquiry is “in relation to the individual’s fitness to have responsibility for the safety and well-being of children or adolescents, elderly individuals, individuals with disabilities, or otherwise vulnerable populations.” 

In addition, the Act amended the New York State Human Rights Law (SHRL) to make it an unlawful discriminatory practice for employers to inquire about, or make decision based upon, convictions sealed under the Act (except as otherwise permitted by law). Previously, the SHRL prohibited consideration of sealed convictions, but the Act has expanded the scope of the type of convictions to be sealed, and thus not considered, under the SHRL.

Employer notice requirements

The Act also requires employers to provide a copy of any criminal history information gathered as part of a background check to the applicant/employee and inform them of their right to “seek correction of any incorrect information contained in such information pursuant to the regulations and procedures established by the Division of Criminal Justice Services.” This notice must be provided as a matter of course, even if the employer does not intend to make any employment decisions based upon the information.

Prior to the Act, New York employers were simply required to provide an Article 23-a notice to employees anytime a background check is run. New York City employers are also required to comply with the Fair Chance Act, which imposes further obligations on employers. Employers must continue to comply with these laws, as well as federal background check laws and related notice requirements, including those set forth by the Fair Credit Reporting Act.

Liability for noncompliance

The Act establishes a private right of action against a person who, without consent from the individual who had a sealed conviction, knowingly and willfully discloses a sealed conviction. To succeed on such a claim, a plaintiff must demonstrate that there was a duty of care owed to him, the discloser knowingly and willfully breached such duty, the disclosure caused injury, and the breach was a substantial factor in such injury.

The Act also provides employers with an affirmative defense to negligent hiring claims, as the Act prohibits sealed convictions from being introduced as evidence of negligence where an employer did not receive such records during the background check process because they were sealed.

Takeaways

Employers should familiarize themselves with the Act and ensure that their background check processes, and those of their third-party vendors, are compliant with its heightened requirements. In addition, employers should be sure to provide the requisite notice and criminal history information to a candidate anytime a background check is run on them.