A04038 Summary:
BILL NO | A04038A |
  | |
SAME AS | SAME AS S03205-A |
  | |
SPONSOR | Weprin |
  | |
COSPNSR | O'Donnell, Aubry, Perry, Abinanti, Sepulveda |
  | |
MLTSPNSR | |
  | |
Amd §296, Exec L; amd §§170.55 & 170.56, CP L | |
  | |
Prohibits employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal. |
A04038 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)   BILL NUMBER: A4038A SPONSOR: Weprin
  TITLE OF BILL: An act to amend the executive law and the criminal procedure law, in relation to preventing employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal   PURPOSE OR GENERAL IDEA OF BILL: To bring arrested persons whose criminal charges have been "adjourned in contemplation of dismissal" within the protection of those provisions or the Human Rights Law and the Criminal Procedure Law which prevent employment discrimination against persons who have been arrested but not convicted or any crime.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends the Human Rights Law, Executive Law Section 296(16), to provide that licensing agencies, employers, and providers of credit or insurance shall not make inquiries about, or take adverse actions based on, an arrest or criminal accusation which has been adjourned in contem- plation of dismissal (ACD'd). It further provides that individuals whose criminal charges have been adjourned in contemplation of dismissal shall not be required to divulge information about these charges in connection with employment, licensing, credit or insurance. To accomplish this purpose, the bill provides that a case which has been ACD' d, and has not been restored to the court calendar, shall not be considered a "pending case" for purposes of this provision. Sections 2 and 3 amend the sections of the criminal procedure law which authorize ACD's, sections 170.55 and 170.56 of the CPL, to provide that once a case has been ACD'd, employers and governmental agencies which issue various certificates, licenses, permits or authorizations that are required by law as a condition of gaining or holding employment in vari- ous types of positions, businesses and professions, shall treat the ACD as a termination of the case in the defendant's favor. The intent of this provision is that an employer or public agency which has suspended or withheld a permit, license or clearance required by an individual that is necessary for the individual to gain or retain employment, shall not consider the matter pending until the final order of dismissal is entered by the court, but shall proceed upon being notified of the ACD, as it would proceed upon being notified of a dismissal or acquittal, This provision would not limit the discretion of public or private employers who have taken adverse action subsequent to an arrest but before the ACD was ordered.   EXISTING LAW: The protections afforded by Section 1 of the bill are already afforded by existing law to persons whose criminal cases ended in dismissal or acquittal; in youthful offender adjudications; in convictions of noncriminal violations or infractions, with certain limited exceptions; and in convictions of drug offenses where the defendant has completed a drug treatment program and has satisfied the court that he is deserving of this protection. Existing law contains certain exemptions relating to gun licensing and law enforcement positions. These would be unchanged by the amendments. The exemptions would apply to persons who received ACD's, as they apply to the other categories of protected persons. CPL section 170.55, subd. 8, already contains a provision that "no person shall suffer any disability or forfeiture" as a result of an order granting an ACD. It further states that upon final dismissal, "the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution." The proposed amendment in section 2 of the bill clarifies the existing statute by specifying that the person who has been granted the ACD is entitled to restoration of certain legal rights, albeit less than the sweeping legal protection he will receive once the dismissal is final. CPL section 170.56, relating to ACDs in marijuana cases, contains the same language as CPL 170.55 regarding the arrest and prosecution being "deemed a nullity" upon final dismissal of the matter.   JUSTIFICATION: Currently, state laws against criminal record discrimination protect people whose arrests did not lead to conviction, so long as the charges are not pending. However, there are no protections for people who have received adjournments in contemplation of dismissal (ACD's), even though they will be protected as soon as the dismissal occurs. A case that has been ACD'd is not yet sealed under the provisions of the Criminal Proce- dure Law, and therefore is not considered "terminated" in the defend- ant's favor under the existing statute, but it routinely will be dismissed and sealed after the passage of six months or a year, depend- ing on the charge. See CPL §§ 170.55, 170.56, 210.46, 210.47, 215.10. Under existing law, employers can and often do deny job applicants who have received an ACD's on the theory that the case is "pending," even though just a tiny fraction of ACD'd cases are ever restored to the calendar and prosecuted. This places an unfair and unnecessary obstacle in the path of job applicants, where the prosecution has already conceded that the person did nothing that requires pursuit of criminal charges. Executive Law Section 296(16) should be amended to add protections against criminal record discrimination for anyone who has received an adjournment in contemplation of dismissal, unless and until that person's charges are restored to the court calendar. Additionally, employers are often required to fire workers or suspend them without pay for the 6-month or 12-month period of an ACD, because a government agen- cy that must authorize the employment considers the case "pending" and withholds the necessary authorization. This is an unnecessary and oner- ous burden on employees, particularly low-income employees in fast-grow- ing service professions like health and education. When a case has been ACD'd, and the employer is willing to retain or reinstate the employee, a governmental licensing or supervisory agency should n of block retention or reinstatement merely because time must pass before the ACD "ripens" into a dismissal. Because ACD'd cases almost always result in dismissal, it would be unfair for the state and its instrumentalities to continue to deny the individual a source of income, merely because he was arrested, once the Court has ordered the ACD and thereby determined that the case does not warrant continued prosecution.   PRIOR LEGISLATIVE HISTORY: Passed Assembly 2013. Ordered to Third Reading 2014. Referred to Correction in 2015 and 2016.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: 90 days after it shall have become a law; provided however that section two of this act shall take effect on the same day and in the same manner as section 48-a of part WWW of chapter 59 of the laws of 2017 takes effect.
A04038 Text:
Go to top STATE OF NEW YORK ________________________________________________________________________ 4038--A 2017-2018 Regular Sessions IN ASSEMBLY January 31, 2017 ___________ Introduced by M. of A. WEPRIN, O'DONNELL, AUBRY, PERRY, ABINANTI -- read once and referred to the Committee on Correction -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the executive law and the criminal procedure law, in relation to preventing employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 16 of section 296 of the executive law, as 2 separately amended by section 3 of part N and section 14 of part AAA of 3 chapter 56 of the laws of 2009, is amended to read as follows: 4 16. It shall be an unlawful discriminatory practice, unless specif- 5 ically required or permitted by statute, for any person, agency, bureau, 6 corporation or association, including the state and any political subdi- 7 vision thereof, to make any inquiry about, whether in any form of appli- 8 cation or otherwise, or to act upon adversely to the individual 9 involved, any arrest or criminal accusation of such individual not then 10 pending against that individual which was followed by a termination of 11 that criminal action or proceeding in favor of such individual, as 12 defined in subdivision two of section 160.50 of the criminal procedure 13 law, or by an order adjourning the criminal action in contemplation of 14 dismissal, pursuant to section 170.55, 170.56, 210.46, 210.47, or 215.10 15 of the criminal procedure law, or by a youthful offender adjudication, 16 as defined in subdivision one of section 720.35 of the criminal proce- 17 dure law, or by a conviction for a violation sealed pursuant to section 18 160.55 of the criminal procedure law or by a conviction which is sealed 19 pursuant to section 160.58 of the criminal procedure law, in connection 20 with the licensing, employment or providing of credit or insurance to 21 such individual; provided, further, that no person shall be required to 22 divulge information pertaining to any arrest or criminal accusation of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04923-02-7A. 4038--A 2 1 such individual not then pending against that individual which was 2 followed by a termination of that criminal action or proceeding in favor 3 of such individual, as defined in subdivision two of section 160.50 of 4 the criminal procedure law, or by an order adjourning the criminal 5 action in contemplation of dismissal, pursuant to section 170.55 or 6 170.56 of the criminal procedure law, or by a youthful offender adjudi- 7 cation, as defined in subdivision one of section 720.35 of the criminal 8 procedure law, or by a conviction for a violation sealed pursuant to 9 section 160.55 of the criminal procedure law, or by a conviction which 10 is sealed pursuant to section 160.58 of the criminal procedure law. The 11 provisions of this subdivision shall not apply to the licensing activ- 12 ities of governmental bodies in relation to the regulation of guns, 13 firearms and other deadly weapons or in relation to an application for 14 employment as a police officer or peace officer as those terms are 15 defined in subdivisions thirty-three and thirty-four of section 1.20 of 16 the criminal procedure law; provided further that the provisions of this 17 subdivision shall not apply to an application for employment or member- 18 ship in any law enforcement agency with respect to any arrest or crimi- 19 nal accusation which was followed by a youthful offender adjudication, 20 as defined in subdivision one of section 720.35 of the criminal proce- 21 dure law, or by a conviction for a violation sealed pursuant to section 22 160.55 of the criminal procedure law, or by a conviction which is sealed 23 pursuant to section 160.58 of the criminal procedure law. For purposes 24 of this subdivision, an action which has been adjourned in contemplation 25 of dismissal, pursuant to section 170.55 or 170.56 of the criminal 26 procedure law, shall not be considered a pending action, unless the case 27 has been restored to the calendar. 28 § 2. Subdivision 16 of section 296 of the executive law, as amended by 29 section 48-a of part WWW of chapter 59 of the laws of 2017, is amended 30 to read as follows: 31 16. It shall be an unlawful discriminatory practice, unless specif- 32 ically required or permitted by statute, for any person, agency, bureau, 33 corporation or association, including the state and any political subdi- 34 vision thereof, to make any inquiry about, whether in any form of appli- 35 cation or otherwise, or to act upon adversely to the individual 36 involved, any arrest or criminal accusation of such individual not then 37 pending against that individual which was followed by a termination of 38 that criminal action or proceeding in favor of such individual, as 39 defined in subdivision two of section 160.50 of the criminal procedure 40 law, or by an order adjourning the criminal action in contemplation of 41 dismissal, pursuant to section 170.55, 170.56, 210.46, 210.47, or 215.10 42 of the criminal procedure law, or by a youthful offender adjudication, 43 as defined in subdivision one of section 720.35 of the criminal proce- 44 dure law, or by a conviction for a violation sealed pursuant to section 45 160.55 of the criminal procedure law or by a conviction which is sealed 46 pursuant to section 160.59 or 160.58 of the criminal procedure law, in 47 connection with the licensing, employment or providing of credit or 48 insurance to such individual; provided, further, that no person shall be 49 required to divulge information pertaining to any arrest or criminal 50 accusation of such individual not then pending against that individual 51 which was followed by a termination of that criminal action or proceed- 52 ing in favor of such individual, as defined in subdivision two of 53 section 160.50 of the criminal procedure law, or by an order adjourning 54 the criminal action in contemplation of dismissal, pursuant to section 55 170.55 or 170.56 of the criminal procedure law, or by a youthful offen- 56 der adjudication, as defined in subdivision one of section 720.35 of theA. 4038--A 3 1 criminal procedure law, or by a conviction for a violation sealed pursu- 2 ant to section 160.55 of the criminal procedure law, or by a conviction 3 which is sealed pursuant to section 160.58 or 160.59 of the criminal 4 procedure law. The provisions of this subdivision shall not apply to the 5 licensing activities of governmental bodies in relation to the regu- 6 lation of guns, firearms and other deadly weapons or in relation to an 7 application for employment as a police officer or peace officer as those 8 terms are defined in subdivisions thirty-three and thirty-four of 9 section 1.20 of the criminal procedure law; provided further that the 10 provisions of this subdivision shall not apply to an application for 11 employment or membership in any law enforcement agency with respect to 12 any arrest or criminal accusation which was followed by a youthful 13 offender adjudication, as defined in subdivision one of section 720.35 14 of the criminal procedure law, or by a conviction for a violation sealed 15 pursuant to section 160.55 of the criminal procedure law, or by a 16 conviction which is sealed pursuant to section 160.58 or 160.59 of the 17 criminal procedure law. For purposes of this subdivision, an action 18 which has been adjourned in contemplation of dismissal, pursuant to 19 section 170.55 or 170.56 of the criminal procedure law, shall not be 20 considered a pending action, unless the case has been restored to the 21 calendar. 22 § 3. Subdivision 8 of section 170.55 of the criminal procedure law, as 23 added by chapter 134 of the laws of 1982 and as renumbered by chapter 24 683 of the laws of 1990, is amended to read as follows: 25 8. The granting of an adjournment in contemplation of dismissal shall 26 not be deemed to be a conviction or an admission of guilt. No person 27 shall suffer any disability or forfeiture as a result of such an order. 28 Upon granting the order of adjournment, the action shall be considered 29 terminated in the defendant's favor for the purpose of employment as 30 defined by subdivision five of section seven hundred fifty of the 31 correction law or license as defined by subdivision four of section 32 seven hundred fifty of the correction law. Upon the dismissal of the 33 accusatory instrument pursuant to this section, the arrest and prose- 34 cution shall be deemed a nullity and the defendant shall be restored, in 35 contemplation of law, to the status he or she occupied before his or her 36 arrest and prosecution. 37 § 4. Subdivision 4 of section 170.56 of the criminal procedure law, as 38 added by chapter 1042 of the laws of 1971, is amended to read as 39 follows: 40 4. Upon the granting of an order pursuant to subdivision two of this 41 section, the action shall be considered terminated in the defendant's 42 favor for the purpose of employment as defined by subdivision five of 43 section seven hundred fifty of the correction law or a license as 44 defined by subdivision four of section seven hundred fifty of the 45 correction law. Upon the granting of an order pursuant to subdivision 46 three, the arrest and prosecution shall be deemed a nullity and the 47 defendant shall be restored, in contemplation of law, to the status he 48 or she occupied before his or her arrest and prosecution. 49 § 5. No provision of this act shall be construed to impair or diminish 50 any rights an employee or licensee, or an applicant for employment or a 51 license, may already possess pursuant to section 170.55 or 170.56 of the 52 criminal procedure law. 53 § 6. This act shall take effect on the ninetieth day after it shall 54 have become a law; provided however that section two of this act shall 55 take effect on the same date and in the same manner as section 48-a of 56 part WWW of chapter 59 of the laws of 2017, takes effect.