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A01270 Summary:

BILL NOA01270
 
SAME ASSAME AS S08689
 
SPONSORRozic
 
COSPNSRBarron, Blake, Cook, Gottfried, Hooper, Jaffee, Mosley, O'Donnell, Otis, Perry, Pichardo, Sepulveda, Walker, Bichotte
 
MLTSPNSRDavila, Glick, Peoples-Stokes
 
Amd 296, Exec L; amd 313, Ed L
 
Provides that certain entities may not require a person to provide a copy of his or her criminal history record under certain circumstances.
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A01270 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1270
 
SPONSOR: Rozic (MS)
  TITLE OF BILL: An act to amend the executive law and the education law, in relation to prohibiting mandatory disclosure of a criminal history record in certain circumstances   PURPOSE: To make it unlawful discriminatory practice for an employer to require a job applicant to disclose his or her criminal history record obtained from the Division of Criminal Justice Services as a requirement for consideration of employment.   SUMMARY OF PROVISIONS: Section I of the bill amends subdivision 15 of section 296 of the execu- tive law to make it an unlawful discriminatory practice for a person, agency, bureau, corporation, state or political subdivision to require an individual to provide a copy of his or her criminal history record obtained from the Division of Criminal Justice Services (DCJS). Section II of the bill adds a new paragraph (0 to subdivision 3 of section 313 of the education law to prohibit an institution of education to require an individual provide his or her DCJS criminal history record to such institution. Section III sets forth the effective date.   JUSTIFICATION: As the central repository of criminal history information in New York, the Division of Criminal Justice Services (DCJS) is charged with main- taining finger-print based criminal history records of individuals arrested for criminal offenses in New York State. See generally, Execu- tive Law § 837. The DCJS criminal history record (DCJS record) is confi- dential and is available to law enforcement agencies, courts and enti- ties that have statutory access to the records. See Executive Law § 836(6),(8). In addition, individuals can obtain their personal DCJS record. See 9 NYCRR 60.50.1 (establishing procedures for people who are not incarcerated to access their personal record); Executive Law § 837 (8-a) (establishing the right for incarcerated people to access their personal DCJS records without having to pay a fee), The personal DCJS record that is disclosed to individuals is unsuppressed, and therefore includes arrests that have been scaled under Criminal Procedure Law (CPL) § 160.55, or § 160,58, and arrests that have resulted in Youthful Offender adjudication and deemed confidential under CPL § 720.35, to ensure the confidentiality of the personal DCJS record, DCJS permits individuals to authorize re-disclosure of their personal record only to their attorneys. The confidential nature of the DCJS record is reinforced by those stat- utes that authorize disclosure to non-law enforcement entities. For example, Executive law § 837-n allows certain employers to access DCJS of applicants for caregiver positions. Subsection (2) (b) of this provision specifically states that the DCJS record is not to be re-disc- losed, and that "any person who re-discloses such reports in violation of this section shall be guilty of a class A misdemeanor." In addition, DCJS's website includes warnings about the confidentiality of its crimi- nal history record, stating for example the following: "Note: a personal record review cannot be requested for another person in order to deter- mine if that person has a criminal history." Despite the clear import of these laws and policies, a growing number of entities are trying to bypass the confidential nature of the DCJS record by requiring applicants to obtain and re-disclose their personal DCJS records. For example, at least two colleges, Empire State College and SUNY Plattsburgh, require applicants to re-disclose their personal DCJS records as a condition of admission, and the Office of Alcohol and Substance Abuse Services (OASAS) had maintained a policy requiring applicants for certification or re-certification as an alcohol and substance abuse counselor to re-disclose their personal DCJS record. Because the personal DCJS record is unsuppressed, the entities engaging in this practice improperly obtain information about sealed or confiden- tial arrests. Taken as a whole, the existing laws seem to prohibit this practice. But there is not one provision than an applicant can point to in rebuffing an entity's request or requirement that the personal DCJS record be re-disclosed. Nor do entities that undermine the confidentiality of the DCJS record in this manner incur a penalty. In addition, because there is not one provision explicitly prohibiting this practice, many appli- cants are not aware of the illegal nature of the request disclose their personal DCJS records and comply without fully understanding the conse- quences of doing so. This proposed legislation seeks to protect the confidentiality of the DCJS record explicitly providing that entities cannot ask or require applicants to re-disclose their personal DCJS records. Specifically, the proposed legislation: 1. Amends Executive Law § 837 by including new subsection (8-d) which explicitly prohibits any entity from asking or requiring applicants to re-disclose their personal DCJS record. 2. Ensures that "entity" is broadly defined by looking to Executive (Human Rights) Law for definitions of entities in the domains of employ- ment and housing, and to the regulations promulgated pursuant to the Education Law for the definition of institutions of higher education. 3. Provides for full enforcement of this prohibition by making it a class A misdemeanor for any "person" who fails to comply. "Person" is defined by penal Law § 10.00(7) to include not only human beings, but also public or private corporations, unincorporated associations, part- nerships, the governments and governmental instrumentalities, See gener- ally People v. Highgate LTC management, 69 A.D,3d 185 (2009) (nothing how broadly "person" is defined under Penal Law § 10,00(7)). This penalty parallels the penalty set forth in Executive Law § 837-n for unauthorized re-disclosure of the DCJS record.   LEGISLATIVE HISTORY: 2016: A00158 (Rozic) - Third Reading 2015: A00158 (Rozic) - Third Reading 2014: A07593 (Rozic) - Third Reading 2013: A07593 (Rozic) - Third Read- ing   FISCAL IMPACT ON THE STATE: None.   EFFECTIVE DATE: This act shall take effect one hundred twenty days after it shall have become law.
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A01270 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1270
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2017
                                       ___________
 
        Introduced  by  M.  of A. ROZIC, BARRON, BLAKE, COOK, GOTTFRIED, HOOPER,
          JAFFEE, MOSLEY, O'DONNELL, OTIS, PERRY, PICHARDO, SEPULVEDA, WALKER --
          Multi-Sponsored by -- M. of A. DAVILA, GLICK, PEOPLES-STOKES  --  read
          once and referred to the Committee on Correction
 
        AN  ACT to amend the executive law and the education law, in relation to
          prohibiting mandatory disclosure  of  a  criminal  history  record  in
          certain circumstances
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 15 of section 296  of  the  executive  law,  as
     2  amended  by  chapter  534  of  the  laws  of 2008, is amended to read as
     3  follows:
     4    15. It shall be an unlawful discriminatory practice  for  any  person,
     5  agency,  bureau, corporation or association, including the state and any
     6  political subdivision thereof, to deny any license or employment to  any
     7  individual  by reason of his or her having been convicted of one or more
     8  criminal offenses, or by reason of a finding of a lack  of  "good  moral
     9  character"  which  is based upon his or her having been convicted of one
    10  or more criminal offenses, when such  denial  is  in  violation  of  the
    11  provisions  of  article  twenty-three-A  of the correction law. Further,
    12  there shall be a rebuttable  presumption  in  favor  of  excluding  from
    13  evidence  the prior incarceration or conviction of any person, in a case
    14  alleging that the employer has been negligent in hiring or retaining  an
    15  applicant  or employee, or supervising a hiring manager, if after learn-
    16  ing about an applicant or employee's past criminal  conviction  history,
    17  such  employer  has  evaluated  the  factors  set forth in section seven
    18  hundred fifty-two of the correction law, and  made  a  reasonable,  good
    19  faith  determination  that  such  factors  militate  in favor of hire or
    20  retention of that applicant or  employee.  No  person,  agency,  bureau,
    21  corporation,  association, the state or any political subdivision there-
    22  of, shall require an individual to provide a copy of his or her criminal
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00412-01-7

        A. 1270                             2
 
     1  history record that he or she obtained pursuant to the rules  and  regu-
     2  lations of the division of criminal justice services.
     3    §  2.  Subdivision 3 of section 313 of the education law is amended by
     4  adding a new paragraph (f) to read as follows:
     5    (f) No educational institution shall require an individual to  provide
     6  a  copy  of  his  or her criminal history record that he or she obtained
     7  pursuant to the rules  and  regulations  of  the  division  of  criminal
     8  justice services.
     9    § 3. This act shall take effect on the one hundred twentieth day after
    10  it shall have become a law.
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