The New York State Clean Slate Act (“Clean Slate Act”) takes effect Saturday, November 16, 2024. Littler previously summarized the requirements of the statute when it passed the state legislature and was signed by Governor Hochul last year. In short, to relieve the barriers to employment for persons with criminal convictions, the Clean Slate Act automatically seals misdemeanor and certain felony criminal records, as follows:
- Misdemeanors are sealed three years from the individual’s release from prison or from the imposition of sentence if there was no incarceration; and
- Felonies are sealed eight years after release from prison or from the imposition of sentence if there was no incarceration.
The Clean Slate Act exempts certain categories of serious offenses, and does not seal the following convictions:
- Class A felonies (very serious felonies including murder, treason, arson, terrorism kidnapping—excluding certain Class A drug convictions);
- Sexually Violent Offenses; and
- Sex Crimes.
Critical to employers in New York State, the Clean Slate Act prohibits employers from making any inquiry regarding automatically sealed convictions or making any adverse decision concerning an individual’s employment based on automatically sealed convictions. Employers remain permitted to access and consider sealed convictions in making employment decisions when required by state or federal law to conduct a fingerprint-based background check or where authorized to conduct a fingerprint-based background check because the applicant would be working with children, the elderly, or vulnerable adults.
The Clean Slate Act is limited to criminal records under New York State law. Federal offenses and records of convictions in other states are not sealed. Further, convictions will not be sealed where the individual has a criminal charge pending, is on probation, or is under parole supervision when the time period for automatic sealing occurs.
However, under the law persons receiving sealed criminal conviction information have a duty of care to prevent unlawful disclosure of a sealed conviction. The Act creates a cause of action against the disclosing entity by a person who has been harmed by the unlawful disclosure of their sealed criminal history.
Employers conducting criminal background checks covering New York convictions of applicants for employment, engagement as independent contractors, or of current employees must now be diligent to ensure their criminal background check practices comply with the Clean Slate Act. Specifically, employers performing background checks should consult with employment counsel to help reduce risks of violations of the Clean Slate Act, take steps immediately to confirm that they are not receiving information regarding New York convictions that are automatically sealed, and are not making decisions based on sealed convictions.
