New York Clean Slate Act takes effect on November 16, 2024 with new obligations for employers running criminal background checks

On 16 November 2024, New York Clean Slate Act will come into effect. The Act requires that certain criminal convictions be automatically sealed after a specific time period. It will also require greater disclosure by employers of criminal history information being considered in connection with hiring or continued employment.

Specifically, the Act provides that the New York State Unified Court System has up to three years from the effective date (that is, until November 16, 2027) to seal all eligible convictions. At that point, going forward, all eligible convictions will be automatically sealed and will become unavailable to most employers that conduct background checks as part of the hiring process or otherwise in the course of employment.

Convictions Eligible for Sealing

Convictions for most misdemeanor and felony convictions are eligible to be sealed. However, certain convictions, such as sex offenses, sexually violent offenses, and non-drug-related Class A felonies, including murder, are not eligible for sealing under the Act.

Time Period Before Convictions are Sealed

Misdemeanor convictions are eligible to be sealed three years from the date of sentencing (if no sentence of incarceration was imposed), or three years from the date of the individual’s release from incarceration, whichever is later. Felony convictions can be sealed 8 years after the sentencing date (if no sentence of imprisonment was imposed), or 8 years after the date the individual is released from incarceration. If the individual receives a new misdemeanor conviction or felony conviction, the waiting period will start over and reflect the most recent conviction. The prior conviction will only be sealed after the waiting period is completed for the most recent conviction.

Exempt Employers

Employers that are otherwise required by law to conduct “fingerprint-based” criminal history checks, such as employers in childcare, eldercare, and disability care, will have access to records that would otherwise be sealed under the Act.

Employer Notice Requirements

The Act also imposes heightened notice obligations on employers conducting background checks that include criminal history information. Employers who receive criminal history information during a background check are now required to provide a copy to the applicant, and inform them of their right to “seek corrective action for any incorrect information contained in

“. This information is to be provided with a copy Article 23-A from the New York Correction Law that employers must already provide to applicants as part the criminal background background check process. Employers must comply with the above notice requirement whether or not they plan to take adverse actions against the applicant due to their criminal history. This is a change from the current process whereby criminal history information obtained as part of a background check need only be disclosed by an employer if adverse action is intended to be taken.[therein]Protections Against Negligence Claims for Employers

Because many criminal convictions will be sealed, the Act provides non-exempt employers with a defense against negligent hiring, retention, and supervision claims. The Act prohibits potential litigants from using sealed convictions to prove negligence against an employer if, for example, the employer conducted a background check and the report did not include any convictions due to the fact that the convictions had been sealed. If the employer hired an applicant who then engaged some type of wrongful conduct at work, it would be prohibited by the Act because the employer was unaware of the sealed convictions.

However employers who receive records that are normally sealed as part a background check and are exempted from the Act (as described) owe a responsibility to individuals with sealed criminal convictions. They can be held liable for negligence if they breach their duty of caring by disclosing sealed records without consent.