On November 16, 2023, Governor Hochul signed into law the New York Clean Slate Act, which, among other things, will impact how employers conduct background checks. In an effort to promote second chance hiring, the Clean Slate Act will require state and local authorities to automatically seal from public access certain criminal records of individuals who have satisfied their sentence and remain a law-abiding citizen for a certain period of time. Specifically, an individual will be given a “clean slate” under the following scenarios:
- For a misdemeanor conviction, the record will be sealed once 3 years have passed since the individual’s release from incarceration, or the imposition of sentence if there was no sentence of incarceration.
- For a felony conviction, the record will be sealed once 8 years have passed from the date the individual was last released from incarceration, provided (i) the individual does not have a criminal charge pending and (ii) the individual is not currently under the supervision of any probation or parole department.
The Act excludes convictions for sex crimes, murder, and other serious felonies, and applies only to criminal records of convictions under New York State’s penal law —meaning state and local authorities will not be required to seal criminal records of convictions under federal law or any other state’s criminal law.
Under the Act, which will go into effect November 16, 2024, employers will generally be prohibited from inquiring about sealed records or using sealed conviction records when making employment decisions. Notably, there are several exceptions under the Clean Slate Act, including entities that are required or authorized under state or federal law to conduct a fingerprint-based background check where a job applicant would be working with children, the elderly, or vulnerable adults. This includes home care and human services employers such as home care agencies and managed long-term care plans – which have a regulatory obligation to conduct a Criminal History Record Check on certain job applicants and employees – to inquire about and use sealed criminal records to make employment decisions.
Employers should review their employment practices and personnel policies relating to the use of criminal background checks and, if necessary, work with legal counsel to modify and implement those policies to ensure compliance with this Act.