New York State’s Clean Slate Act Changes Rules for Consideration of Employee and Applicant Criminal Convictions

By Peter T. Shapiro

Employers in New York State should be familiar with the provisions of Article 23-A of the Corrections Law, which mandates that employers conduct a job-related analysis and consider multiple factors when assessing an application for employment submitted by an individual with a criminal conviction on their record. 

New York City employers should also be familiar with its similar Fair Chance Act, as well as its Ban the Box Law, which prohibits employers from inquiring into a job applicant’s arrest or criminal history prior to extending a conditional employment offer. Now New York State employers must comply with the Clean Slate Act, which became effective on November 16, 2024. The Act seeks to protect individuals with criminal records by mandating sealing of certain New York State convictions, including most misdemeanor and felony convictions, with the exception of sex offenses, sexually violent offenses, and non-drug-related Class A felonies, including murder. For misdemeanors, records must be sealed three years after release from prison or from the imposition of sentence, and for felonies, eight years from prison release or from the imposition of sentence absent incarceration. The Act provides an exemption for any entity that is required to conduct a fingerprint-based background check or that is authorized to conduct a fingerprint-based background check where a job applicant would be working with children, the elderly, or vulnerable adults (e.g., public school teachers and police officers), as well as other exemptions not applicable to private entities.
 
Notably, the Act amends the Human Rights Law to make it an unlawful discriminatory practice for employers to inquire about or act upon automatically sealed convictions as to both applicants and incumbent employees (other than to the limited extent permitted in the Act for certain employers). As a result, there is potential exposure to compensatory damages for lost income and emotional distress, punitive damages, and attorneys’ fees for violations of the Act’s provisions when the individual is harmed by the unlawful disclosure of their sealed criminal history. That is on top of the liability that can fall on employers who fail to comply with Article 23-A when considering criminal records in making hiring decisions.  
 
New York State employers would be well-advised to revisit and possibly revise their hiring policies and practices, including training for all personnel involved in hiring, regarding the use of background checks and as to the hiring of individuals with criminal records. Doing so is essential to minimize the potential for liability for failing to follow these onerous requirements. The attorneys in Lewis Brisbois’ New York employment group are available to assist with the necessary endeavors.