Navigating New York’s Clean Slate Act: Key Insights for Employers

New York’s Clean Slate Act, effective November 16, 2024, introduces significant changes to how employers handle criminal background checks. Designed to promote second chances, the Act automatically seals certain conviction records after specific timeframes, provided individuals have remained crime-free. Employers must navigate these new rules carefully while understanding their obligations and limitations.

Automatic Sealing of Convictions

Under the Clean Slate Act, eligible convictions are automatically sealed after the following periods:

• Misdemeanors: Automatically sealed seven years after sentencing.
• Felonies: Automatically sealed ten years after sentencing or release from incarceration, whichever occurs later.

To qualify for sealing, individuals must remain conviction-free during the respective seven- or ten-year waiting period and not have any pending criminal charges.

Exemptions from Sealing

Not all convictions are eligible for sealing. The following categories are explicitly excluded:

• Sex crimes: Convictions requiring registration under New York’s Sex Offender Registration Act (SORA).
• Class A felonies: The most serious crimes, such as murder or terrorism-related offenses.
• Other crimes explicitly excluded by the Act or subsequent regulations.

Employers in certain industries—such as childcare, senior care, or roles requiring interaction with at-risk populations—retain full access to sealed records only when fingerprint-based background checks are mandated by state or federal law. This provision ensures that safeguarding vulnerable populations remains a priority.

Employer Obligations under the Clean Slate Act

The Clean Slate Act imposes several new requirements on employers who conduct criminal background checks. These obligations are in addition to those already required under the Fair Credit Reporting Act (FCRA) and New York City’s Fair Chance Act (FCA). Employers must:

1. Provide the Background Check Report:
   If adverse information from a criminal background check contributes to a decision affecting the applicant or employee, the employer must provide a copy of the report.
2. Notify the Subject of Their Rights:
   Employers must inform the individual of their right to dispute inaccuracies or seek correction of their criminal record.
3. Provide a Copy of Article 23-A of the New York Correction Law:
   This law requires employers to evaluate applicants with criminal histories on an individualized basis, considering factors such as the nature of the offense, its relevance to the job, and the time elapsed since the offense. Employers must provide this information to ensure the subject understands their protections under the law.

Interplay with Existing Laws

The Clean Slate Act does not replace or supersede existing laws governing criminal background checks but adds another layer of compliance. Employers must ensure adherence to these laws including the federal Fair Credit Reporting Act (FCRA) and New York City’s Fair Chance Act (FCA).

Practical Steps for Employers

To comply with the Clean Slate Act and avoid potential liabilities, employers should:

1. Review and Update Policies:
   Ensure background check procedures comply with state and local laws. This includes incorporating Clean Slate Act requirements alongside FCRA and FCA obligations.
2. Train HR and Hiring Teams:
   Educate relevant staff on the Clean Slate Act’s requirements, including the rights of applicants and employees under Article 23-A and the importance of individualized assessments.
3. Partner with Background Check Providers:
   Collaborate with compliant consumer reporting agencies to understand how the Act may affect the availability of certain records and ensure all reports provided align with new legal requirements.
4. Provide Clear Communication:
   Develop templates for communicating adverse decisions, including providing the criminal background report, Article 23-A, and information on correcting records.
5. Stay Informed About Exceptions:
   For employers in regulated industries, confirm ongoing access to fingerprint-based checks to avoid disruptions in hiring processes for positions involving vulnerable populations.

Balancing Compliance and Fair Hiring

The Clean Slate Act reflects a growing trend toward balancing public safety and the rehabilitation of individuals with criminal histories. While the law limits the accessibility of certain records, it does not prohibit employers from considering criminal histories when legally permitted. Instead, it emphasizes fairness, accuracy, and individualized consideration.

Employers operating in New York must recognize this shift and align their practices accordingly. By implementing robust compliance measures, employers can not only avoid legal risks but also foster equitable hiring practices that benefit both their organizations and the wider community.

Conclusion

New York’s Clean Slate Act signals a transformative approach to criminal background checks, with new obligations for employers to ensure fairness and transparency. Staying compliant requires proactive adjustments to hiring practices and policies. By understanding the nuances of the Act and integrating its requirements with existing laws, employers can navigate this new landscape effectively while supporting equitable opportunities for qualified candidates.

 

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Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.