|SAME AS||SAME AS S08689|
|COSPNSR||Barron, Blake, Cook, Gottfried, Hooper, Jaffee, Mosley, O'Donnell, Otis, Perry, Pichardo, Sepulveda, Walker, Bichotte|
|MLTSPNSR||Davila, 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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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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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. LBD00412-01-7A. 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.