Another New York State law has recently come into effect that could have serious effects on your company’s hiring and other employment policies. The Clean Slate Act, which took effect on November 16, 2024, automatically seals misdemeanor and certain felony criminal records from public access. This is done a certain amount of time after the person’s completion of his sentence or release from incarceration, whichever is later.
For misdemeanors, the records automatically are sealed three years after the release from jail or sentencing date, whichever is later. For certain felony convictions, however, the records are automatically sealed after eight years. The law doesn’t seal records of sex crimes or Class A felonies, such as first and second-degree murder, kidnapping, and arson.
At first glance, it might seem unclear how the law might affect your business. It’s not just about hiring. It also places new prohibitions on employers inquiring about automatically-sealed convictions and creates new requirements for employers performing background checks on applicants or employees.
Covered Employers
The law applies to nearly all New York employers with the exception of those companies required by law to conduct fingerprint-based background checks. This would exclude childcare, eldercare, and disability-care employers from the law’s reach.
Also, companies that are required by law to consider sealed records as well as public, private, and religious schools and State Education Department licensing matters are excluded from the law. Finally, private transportation companies like Uber and Lyft and departments employing police, peace, and/or corrections officers are entitled to review sealed records.
Garden-variety retailers? Outside sales positions? Architects, landscape designers, and accountants? All of these sorts of jobs are covered by the law, and sealed records can’t be considered.
Inquiring about Sealed Convictions
First, the law prohibits employers from asking questions about automatically-sealed convictions. You also can’t use the automatically-sealed conviction in your decisionmaking about an applicant or employee.
This may seem obvious, but you and your HR team can’t ask a potential or current employee about any convictions that have been sealed. Further, you also can’t take an action against an employee or candidate simply because you find out that he’s got a sealed conviction. Taking either step creates liability for unlawful discriminatory practices under the New York State Human Rights Law.
Conducting Background Checks
For employers that conduct background checks as part of the hiring process, you’re now required to provide the applicant with a copy of any criminal history information you obtained. You also must inform the employee of his right to correct any information in the background check that he believes is incorrect. The notice must be provided for all employee background checks that are conducted.
Additionally, you must provide the individual with a copy of Article 23-A of the New York Correction Law, which can be found here.
Employer Liability for Noncompliance
The new law establishes a private right of action against anyone who knowingly and willfully discloses a sealed conviction without the person’s consent. This means the employee or prospective employee in question can bring a lawsuit against you. He’d be required to demonstrate that he was owed a duty of care under the law, that the duty was breached when you or your team member disclosed the sealed conviction, and the disclosure caused injury to him.
A Small Bit of Protection for Employers
The Clean Slate Act also provides an affirmative defense to negligent hiring, retention, and supervision claims. For example, if you conduct a background check and the report reveals no convictions because the convictions were sealed, but the employee later engages in wrongful conduct, the sealed convictions can’t be used as evidence of your negligence in hiring the employee. That’s probably not a great deal of relief to the average employer who cares about having a high-integrity team.
Moreover, if the individual is convicted of another offense during the three- or eight-year waiting period, the waiting period to seal the old conviction re-sets. Notably traffic violations and offenses aren’t convictions and don’t re-start the time.
Key Takeaways
First, it’s important to note that only New York State criminal records are impacted by the new law. Federal offenses and federal records aren’t sealed.
Second, you’ve got to ensure that your background check processes are compliant with these new requirements. If you conduct any background checks and if you aren’t already doing so, you must provide notice and a copy of the report to the employee or applicant anytime a background check is run.
Third, be very careful about sharing information with anyone other than those who have an actual need to know. Think about it this way: if you share sensitive information with others, you increase the risk to your company.
Fourth and finally, you shouldn’t allow any hiring or employment-related decisions to be based on someone’s sealed conviction record. This might seem troubling to you or your HR professionals. We understand that new laws can create confusion.
If you have questions or need more guidance, call us at 716.839.9700. We’re here to help.
