New York Bans Consideration of Sealed Convictions in Employment Decisions



​In the final hours of the 2023 legislative session, the New York Legislature passed the Clean Slate Act. If signed by Gov. Kathy Hochul, it will provide for the automatic sealing of the records of certain convictions after specified periods of time. 

The measure would not take effect, however, until one year after signing. It is intended to increase employment opportunities for those with past criminal histories who have had no recent convictions.  Under the bill, the State Human Rights Law would prohibit employers from inquiring about sealed records or discriminating against applicants or employees based on sealed records.

Automatic Sealing

After taking effect, this bill would immediately seal the records of criminal convictions under state law as follows:

• Misdemeanors would be sealed three years from the individual's prison release, or the imposition of a sentence, if there was no sentence of incarceration.
• Felonies would be sealed after eight years from prison release.

Not eligible for sealing would be Class A-I felonies, the most serious category, for which a maximum sentence of life imprisonment may be imposed (e.g., murder, first-degree kidnapping, first-degree arson, and first-degree illegal narcotics possession) and convictions requiring registration as a sex offender.

Sealing would be automatic except where the convicted individual has a criminal charge pending or is on probation or under parole supervision when the statutory time period for automatic sealing elapses.

Discrimination Based on Sealed Records Prohibited

The bill would amend the New York State Human Rights law to prohibit employers from making any inquiry regarding automatically sealed conviction records or discriminating against individuals based on automatically sealed conviction records.

Records automatically sealed under this bill could still be accessed and used under these circumstances:

• By any entity that is required under state or federal law to conduct a fingerprint-based background check.
• By an entity authorized to conduct a fingerprint-based background check where a job applicant would be working with children, the elderly or vulnerable adults.
• As part of new criminal cases.
• By law enforcement officers conducting an investigation.
• By a licensing officer processing a firearm license application.
  

Notably, the Clean Slate Act would only seal convictions under New York's penal law. The act would not seal criminal convictions under federal law or the criminal law of any state other than New York.

In anticipation of this legislation's taking effect, employers are encouraged to review personnel practices concerning background checks and the use of conviction records.

Once the law is effective, it would also be advisable to consult with employment counsel prior to taking an employment action in New York State based upon an individual's criminal history.

Michael Paglialonga and Stephen Fuchs are attorneys with Littler in New York City. ©2023. All rights reserved. Reprinted with permission.