New York's Clean Slate Act: Your Expert Guide

New York State's Clean Slate Act aims to give people a fresh start, but it's NOT an automatic "get out of jail free" card for past offenses. Unlike other states with similar laws, New York has a stricter process. It doesn't just automatically seal records after a certain time. Instead, individuals need to be completely free of any further criminal activity – no new charges and no pending cases – to qualify. This makes background checks in New York more complex than ever. This article is a must-read for HR professionals and managers to understand these changes, stay compliant, and make informed hiring decisions.

Meet the Experts

• Michelle Pyan: President of CIChecked, a Commercial Investigations Company, with over 30 years of experience in background checks. 

• Joanmarie Dowling: Founder of Dowling Law and Clarity HR Solutions, expert in employment law and HR practices. 

• Todd Higey: Founder of Higey Law, LLC, specializing in the Fair Credit Reporting Act (FCRA) and background check regulations. 

• Rory Bogdon: Public Access Director at the Professional Background Screening Association (PBSA), focusing on fair access to information and smooth background check processes. 

What is the New York Clean Slate Act?

New York's Clean Slate Act aims to give people with past convictions a fair chance at employment and housing, but it's not a simple automatic sealing of records. While the law eventually seals certain criminal records, it requires more than just waiting a set time. Individuals need to have remained crime-free with no new charges or pending cases to be eligible. This means that some records may not be sealed even after the waiting period.

Here's the key takeaway:

Important exceptions to keep in mind:

• Ineligible Records: Not all records are eligible for sealing. Serious offenses like sex crimes, violent felonies, and most Class A felonies (except for some drug-related convictions) will remain on a person's record.

• Federal Crimes: The Clean Slate Act only applies to New York State convictions. Federal crimes are not affected by this law and follow different rules.

Here's the key takeaway:

Conditional Sealing: New York's Clean Slate Act seals eligible misdemeanor records after three years and felony records after eight years, but only if the individual has no further criminal activity, has completed their sentence, including any probation or parole, and their conviction is not one of the exceptions listed above.

As Rory Bogdon from PBSA puts it, 

"Our position on Clean Slate is that... we are in the business of looking at public records. And so long as we have complete access to what is deemed public, we're not really going to raise much of a stink."

Essentially, the background screening industry is focused on accessing and reporting available public records.

Clean Slate vs. Ban the Box: What's the Difference?

Both Clean Slate and "Ban the Box" policies aim to promote fair chances for those with criminal records, but they work in different ways:*

• Ban the Box: This policy removes the check box on job applications that asks about criminal history. It delays the inquiry into an applicant's criminal record, usually until later in the hiring process. New York already has "Ban the Box" in place at the state level, and some cities have even stricter versions.

• Clean Slate: This law goes a step further and automatically seals eligible records after a certain period of time, provided the individual meets specific criteria. It's not just about when you ask about criminal history, but what information you can even access in the first place. This means some records might not show up on a background check at all.

*NYC.gov

Implications for Employers and HR Professionals

The Clean Slate Act has significant implications for how employers conduct background checks and make hiring decisions:

• You cannot use sealed records to make hiring decisions. This is a crucial point for compliance. 

• You need to understand what records are eligible for sealing. This knowledge will prevent you from asking improper questions about an applicant's criminal history.

• To ensure you're prepared for the Clean Slate Act, reviewing your background check process is recommended. This includes taking a look at your policies, procedures, and any related documents to identify areas that may need adjustments to comply with the new law.

• It's always a good idea to consult with your company's legal counsel to ensure your background check process is fully compliant with the Clean Slate Act and other relevant regulations."

As Joanmarie Dowling points out, 

"For those who aren't familiar with that process in New York, there are a list of factors that employers have to consider when they are looking to screen someone out or take employment action based on a prior conviction."

This highlights the need for HR professionals to be well-versed in the specific requirements of the law.

Best Practices for Staying Compliant

Here are some actionable steps to ensure your organization is compliant with the Clean Slate Act:

• Update your background check policies. Make sure they align with the requirements of the Clean Slate Act.

• Train your HR team on the new law. Ensure they understand the implications for background checks and hiring decisions.

• Communicate with your background check provider. Verify that they are aware of and complying with the Clean Slate Act.

• Review your adverse action process. Make sure it adheres to the Fair Credit Reporting Act (FCRA) and other relevant laws.

• Update consent forms and disclosure statements. Ensure these documents reflect the changes brought about by the Clean Slate Act.

• Create a compliance checklist. This will help your HR team follow the correct procedures at each stage of the hiring process.

Michelle Pyan emphasizes the importance of finding a balance: 

"With the end goal in mind of maintaining a safe workplace, but also then balancing compliance with this new Clean Slate Act, how does that balancing act look?"

This underscores the need for employers to prioritize both safety and compliance. To summarize the panelists' perspectives - background screening companies can assist by thoughtfully considering the information they report to employers. 1 Employers should take a deliberate approach, considering industry-specific regulations and obligations, and understanding the relevant factors outlined in Article 23-A. 2 Additionally, employers may want to explore additional background screening sources beyond court records to gain a more comprehensive view of an applicant.

Other States and Clean Slate Laws

New York isn't the only state with a Clean Slate law. Many other states have implemented similar legislation, and more are considering it.

• Pennsylvania, Utah, California, and Connecticut are among the states that have already enacted Clean Slate laws.

• Each state's law has its own nuances and variations.

Rory Bogdon notes the differences in implementation across states: 

"It's really a mixed bag because, as the states do this, 

they implement them in slightly varying ways."

This highlights the importance of staying informed about the specific requirements in your state.

For more information on Clean Slate laws across the country, check out SHRM's article: https://www.shrm.org/topics-tools/employment-law-compliance/clean-slate-laws-are-spreading

Challenges and How to Deal with Them

Todd Higey, an expert in the Fair Credit Reporting Act (FCRA) and background check regulations, highlights the potential for confusion and frustration during the Clean Slate Act's rollout. He emphasizes that applicants may mistakenly believe their records are already sealed, even if the Office of Court Administration (OCA) hasn't completed the process.   He emphasizes the issues as follows:

"The confusion... will probably result from this transitional period, I think, challenging for background screening companies and for employers, because there may be an applicant who thinks his criminal record should be sealed, and, in fact, it is eligible for sealing. But the office of court administration has not done it yet," 

Higey stresses the importance of clear communication and understanding during this period. He advises employers to work closely with background check providers to navigate these challenges and ensure accurate and compliant reporting.

Implementing the Clean Slate Act may present some other challenges for employers:

• Delayed Sealing of Records: There might be delays in the automatic sealing process, leading to discrepancies in background check reports.

• Applicant Disputes: Applicants may challenge the information reported on their background checks, particularly if they believe their records should have been sealed.

• Confusion and Frustration: Both employers and applicants may experience confusion and frustration during the initial implementation phase of the law. 

To mitigate these challenges:

• Stay informed about updates and changes to the law.

• Communicate clearly with applicants about the law and your hiring process.

• Work closely with your background check provider to ensure accurate and up-to-date information.

• Develop a process for handling discrepancies and disputes.

Joanmarie Dowling also acknowledges the potential for confusion: 

"It's going to be a lot harder to show that that's willful... there's a lot of confusion."

Dowling's statement highlights the challenges employers may face when trying to determine if an applicant intentionally failed to disclose a sealed conviction. The complexity of the Clean Slate Act, particularly during its initial implementation phase, could lead to genuine confusion among applicants about whether their records are sealed. This makes it more difficult for employers to prove "willful" non-disclosure, which is a crucial factor in determining whether they can legally deny employment based on an applicant's criminal history.

Need Help Navigating the Clean Slate Act?

The Clean Slate Act adds another layer of complexity to an already intricate landscape of background checks and hiring regulations.  Don't go it alone! CIChecked has been navigating this terrain for over 20 years.  Our team of experts will guide you through these changes and ensure your organization remains compliant.  Contact us today to learn more about how we can help you navigate the Clean Slate Act and other complex regulations.

About CIChecked™

CIChecked ™ , a Commercial Investigations company provides thorough, human-driven background checks that go beyond simple database searches. Our commitment to excellence has earned us recognition as a top background screening provider in HRO Today's Baker's Dozen. This prestigious award reflects the trust our clients place in us and our dedication to providing the highest quality background checks. Our experienced private and licensed investigators dig deeper, cross-checking information to uncover inconsistencies and red flags required by the most highly complex and regulated industries. Every screening is approached with a meticulous investigative process, leaving no stone unturned.

What can you expect: An organization committed to Innovating Screening Standards built on Complete, Current and Compliant Results, Proprietary Pricing Solutions that Cut Costs, not Corners, and the highest level of Certainty without Compromising Speed.

• All Identity Verifications

• Criminal, State, and Municipal level Background Checks

• Drug Screening

• Cyber Investigations

• Continuous Monitoring

A note from our legal eagles: This article provides general information and should not be considered legal advice. Employers should consult with their legal counsel to ensure compliance with all applicable laws and regulations.