NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4868
SPONSOR: Bichotte
 
TITLE OF BILL:
An act to amend the administrative code of the city of New York, the
correction law, the criminal procedure law, the executive law and the
social services law, in relation to prohibiting discrimination based on
a person's arrest record or criminal conviction
 
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to prevent individuals who have a history of
incarceration from being discriminated against before a conditional job
offer is granted. This act shall be known and may be cited as "The New
York State Fair Chance Act".
 
SUMMARY OF SPECIFIC PROVISIONS:
(d) It will be unlawful to discriminate, unless specifically required by
law, for any person to make any inquiry or statement about an appli-
cant's arrest or conviction record until after the person has deemed the
applicant otherwise qualified and decided to extend a conditional offer
of employment.
After inquiring about the applicant's arrest or conviction record but
before taking any adverse employment action based on such inquiry, the
person must: (i) provide a written copy of the inquiry to the applicant;
(ii) perform an analysis of the applicant under article twenty-three-A
of the correction law and provide a written copy of such analysis to the
applicant; and (iii) after giving the applicant the documents pursuant
to paragraphs (i) and (ii) of this subdivision, allow the applicant a
reasonable time (iii) after giving the applicant the documents pursuant
to paragraphs to respond, which shall be no less than seven business
days. During this time, the person must hold the position open for the
applicant but, after the time has passed, need not wait for a response.
(e) Any person who fails to comply with paragraph (d) of this subdivi-
sion (16) sixteen of section (296) two hundred ninety-six of
(article 15 of) the (New York state) executive law; or(b) make any
inquiry as defined in subdivision ten of this section in writing or
otherwise, regarding any arrest or criminal accusation of an applicant
or employee when such inquiry is in violation of subdivision (16)
sixteen of section (296) two hundred ninety-six of (article 15 of) the
(New York state) executive law.
 
JUSTIFICATION:
This bill will allow employers to get to know a potential employee
before any knowledge of a criminal history, thereby granting the poten-
tial employee a fair chance of receiving a job offer.
 
PRIOR LEGISLATIVE HISTORY:
2017-18: A3050; Referred to correction
 
FISCAL IMPLICATIONS:
None
 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
4868
2019-2020 Regular Sessions
IN ASSEMBLY
February 5, 2019
___________
Introduced by M. of A. BICHOTTE, VANEL, MOSLEY, BARRON, ORTIZ -- read
once and referred to the Committee on Correction
AN ACT to amend the administrative code of the city of New York, the
correction law, the criminal procedure law, the executive law and the
social services law, in relation to prohibiting discrimination based
on a person's arrest record or criminal conviction
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "The New York
2 State Fair Chance Act".
3 § 2. Subdivisions 10 and 11 of section 8-107 of the administrative
4 code of the city of New York, subdivision 10 as amended by local law
5 number 63 of the city of New York for the year 2015, paragraphs (a) and
6 (c) of subdivision 10 and subdivision 11 as amended by local law number
7 63 of the city of New York for the year 2018, are amended to read as
8 follows:
9 10. Criminal conviction; employment. (a) It shall be an unlawful
10 discriminatory practice for any employer, employment agency or agent
11 thereof to deny employment to any person or take adverse action against
12 any employee by reason of such person or employee having been convicted
13 of one or more criminal offenses, or by reason of a finding of a lack of
14 "good moral character" which is based on:
15 (i) such person or employee having been convicted of one or more crim-
16 inal offenses, when such denial or adverse action is in violation of the
17 provisions of article [23-a] twenty-three-A of the correction law
18 regardless of when such conviction occurred, including if such
19 conviction occurred while such person was employed at the job at issue;
20 or
21 (ii) such person or employee having a final judgment of guilt entered
22 for a felony more than ten years ago and a misdemeanor more than five
23 years ago. These periods of time shall be measured from the date judg-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08949-02-9
A. 4868 2
1 ment was entered or the release from incarceration, whichever date is
2 later, until the date of the adverse action in question. Criminal acts
3 committed outside the state shall be classified as felonies or misdemea-
4 nors committed within the state based on the maximum sentence that could
5 have been imposed for such conviction under the laws of such foreign
6 jurisdiction.
7 (b) For purposes of this subdivision, "employment" shall not include
8 [membership in any law enforcement agency] employment as a police offi-
9 cer or a peace officer as defined in section 2.10 of the criminal proce-
10 dure law.
11 (c) Pursuant to section [755] seven hundred fifty-six of the
12 correction law, the provisions of this subdivision shall be enforceable
13 against public agencies by a proceeding brought pursuant to article [78]
14 seventy-eight of the civil practice law and rules, and the provisions of
15 this subdivision shall be enforceable against private employers by the
16 commission through the administrative procedure provided for in this
17 chapter or as provided in chapter 5 of this title. For purposes of this
18 paragraph only, the terms "public agency" and "private employer" have
19 the meaning given such terms in section [750] seven hundred fifty of the
20 correction law.
21 11. Arrest record; employment. It shall be an unlawful discriminatory
22 practice, unless specifically required or permitted by any other law,
23 for any person to:
24 (a) Deny employment to any applicant or act adversely upon any employ-
25 ee by reason of an arrest or criminal accusation of such applicant or
26 employee when such denial or adverse action is in violation of subdivi-
27 sion [16] sixteen of section [296] two hundred ninety-six of article
28 [15] fifteen of the executive law; or
29 (b) Make any inquiry as defined in subdivision ten of this section, in
30 writing or otherwise, regarding any arrest or criminal accusation of an
31 applicant or employee when such inquiry is in violation of subdivision
32 [16] sixteen of section [296] two hundred ninety-six of article [15]
33 fifteen of the executive law.
34 § 3. Subparagraph (iii) of paragraph (b) and paragraphs (d) and (e) of
35 subdivision 11-a of section 8-107 of the administrative code of the city
36 of New York, as amended by local law number 63 of the city of New York
37 for the year 2018, are amended to read as follows:
38 (iii) After giving the applicant the inquiry and analysis in writing
39 pursuant to subparagraphs (i) and (ii) of this paragraph, allows the
40 applicant a reasonable time to respond, which shall be no less than
41 [three] seven business days and during this time, holds the position
42 open for the applicant.
43 (d) An applicant shall not be required to respond to any inquiry or
44 statement that violates paragraph (a) of this subdivision and any
45 refusal to respond to such inquiry or statement shall not disqualify an
46 applicant from the prospective employment. Nothing in this paragraph
47 shall prohibit an applicant from voluntarily disclosing information
48 pertaining to his or her criminal history.
49 (e) This subdivision shall not apply to any actions taken by an
50 employer or agent thereof pursuant to any state, federal or local law
51 that requires criminal background checks for employment purposes or bars
52 employment based on criminal history. For purposes of this paragraph
53 federal law shall include rules or regulations promulgated by a self-re-
54 gulatory organization as defined in section 3(a)(26) of the securities
55 exchange act of 1934, as amended. A person who is required to perform a
56 criminal background check pursuant to federal, state or local law may
A. 4868 3
1 inform the applicant that the prospective license, permit, or employment
2 is subject to a background check and that the person is prohibited by
3 law from licensing, permitting, or employing individuals with certain
4 criminal convictions, though such prohibition may be lifted by a certif-
5 icate of relief from disabilities or certificate of good conduct under
6 article twenty-three of the correction law.
7 § 4. Section 8-102 of the administrative code of the city of New York
8 is amended by adding a new definition in alphabetical order to read as
9 follows:
10 Criminal offense. The term "criminal offense" means any offense as
11 defined in section 55.10 of the penal law.
12 § 5. Subdivisions 2 and 5 of section 750 of the correction law, as
13 added by chapter 931 of the laws of 1976, are amended and a new subdivi-
14 sion 6 is added to read as follows:
15 (2) "Private employer" means any person, company, corporation, labor
16 organization or association which employs [ten] four or more persons.
17 (5) "Employment" means any occupation, vocation or employment, or any
18 form of vocational or educational training. Provided, however, that
19 "employment" shall not, for the purposes of this article, include
20 [membership in any law enforcement agency] employment as a police offi-
21 cer or a peace officer as defined in section 2.10 of the criminal proce-
22 dure law.
23 (6) "Criminal offense" means any offense as defined in section 55.10
24 of the penal law.
25 § 6. Section 751 of the correction law, as amended by chapter 284 of
26 the laws of 2007, is amended to read as follows:
27 § 751. Applicability. The provisions of this article shall apply to
28 any application by any person for a license or employment at any public
29 or private employer, who is currently charged with or who has previously
30 been convicted of one or more criminal offenses in this state or in any
31 other jurisdiction, and to any license or employment held by any person
32 whose pending arrest for or conviction of one or more criminal offenses
33 in this state or in any other jurisdiction preceded such employment or
34 granting of a license, and to any license or employment held by any
35 person whose pending arrest for or conviction of one or more criminal
36 offenses in this state or in any other jurisdiction occurred during the
37 period of such employment or granting of a license, except where a
38 mandatory forfeiture, disability or bar to employment is imposed by law,
39 and has not been removed by an executive pardon, certificate of relief
40 from disabilities or certificate of good conduct. Nothing in this arti-
41 cle shall be construed to affect any right an employer may have with
42 respect to an intentional misrepresentation in connection with an appli-
43 cation for employment made by a prospective employee or previously made
44 by a current employee.
45 § 7. Section 752 of the correction law, as amended by chapter 284 of
46 the laws of 2007, is amended to read as follows:
47 § 752. Unfair discrimination against persons [previously] charged with
48 or convicted of one or more criminal offenses prohibited. No application
49 for any license or employment, and no employment or license held by an
50 individual, to which the provisions of this article are applicable,
51 shall be denied or acted upon adversely by reason of the individual's
52 having been charged with one or more offenses or having been [previous-
53 ly] convicted of one or more criminal offenses, or by reason of a find-
54 ing of lack of "good moral character" when such finding is based upon
55 the fact that the individual has [previously] been charged with or
56 convicted of one or more criminal offenses, unless:
A. 4868 4
1 (1) there is a direct relationship between one or more of the [previ-
2 ous] criminal offenses and the specific license or employment sought or
3 held by the individual; [or] and
4 (2) the issuance or continuation of the license or the granting or
5 continuation of the employment would involve an unreasonable risk to
6 property or to the safety or welfare of specific individuals or the
7 general public.
8 § 8. The article heading of article 23-A of the correction law, as
9 added by chapter 931 of the laws of 1976, is amended to read as follows:
10 LICENSURE AND EMPLOYMENT OF PERSONS [PREVIOUSLY]
11 CONVICTED OF ONE OR MORE CRIMINAL OFFENSES
12 § 9. The section heading and subdivision 1 of section 753 of the
13 correction law, as added by chapter 931 of the laws of 1976, paragraph
14 (b) of subdivision 1 as amended by chapter 284 of the laws of 2007, are
15 amended to read as follows:
16 Factors to be considered concerning a [previous] criminal charge or
17 conviction; presumption. 1. In making a determination pursuant to
18 section seven hundred fifty-two of this chapter, the public agency or
19 private employer shall consider the following factors:
20 (a) The public policy of this state, as expressed in this act, to
21 encourage the licensure and employment of persons [previously] charged
22 with or convicted of one or more criminal offenses.
23 (b) The specific duties and responsibilities necessarily related to
24 the license or employment sought or held by the person.
25 (c) The bearing, if any, the criminal offense or offenses for which
26 the person was [previously] charged with or convicted will have on his
27 fitness or ability to perform one or more such duties or responsibil-
28 ities.
29 (d) The time which has elapsed since the occurrence of the criminal
30 offense or offenses.
31 (e) The age of the person at the time of occurrence of the criminal
32 offense or offenses.
33 (f) The seriousness of the offense or offenses.
34 (g) Any information produced by the person, or produced on his behalf,
35 in regard to his rehabilitation and good conduct.
36 (h) The legitimate interest of the public agency or private employer
37 in protecting property, and the safety and welfare of specific individ-
38 uals or the general public.
39 § 10. Section 753 of the correction law is amended by adding a new
40 subdivision 3 to read as follows:
41 3. A presumption of rehabilitation in regard to an offense or offenses
42 previously committed shall exist:
43 (a) with regard to one or more previous felony convictions, when the
44 person so convicted has not been convicted of any additional crimes in
45 the ten years following entry of judgment or release from jail or pris-
46 on, whichever date is latest; and
47 (b) with regard to one or more previous misdemeanor convictions, when
48 the person so convicted has not been convicted of any additional crimes
49 in the five years following entry of judgment or release from jail or
50 prison, whichever date is latest.
51 § 11. Section 754 of the correction law, as added by chapter 931 of
52 the laws of 1976, is amended to read as follows:
53 § 754. Written statement upon denial of license or employment or has
54 been subject to adverse employment action. At the request of any person
A. 4868 5
1 [previously] charged with or convicted of one or more criminal offenses
2 who has been denied a license or employment, a public agency or private
3 employer shall provide, within thirty days of a request, a written
4 statement setting forth the reasons for such denial or adverse employ-
5 ment action.
6 § 12. The correction law is amended by adding a new section 755 to
7 read as follows:
8 § 755. Arrest and conviction records; employer inquiries. 1. It shall
9 be an unlawful discriminatory practice for any employer, employment
10 agency or agent thereof to:
11 (a) Declare, print or circulate or cause to be declared, printed or
12 circulated any solicitation, advertisement or publication, which
13 expresses, directly or indirectly, any limitation, or specification in
14 employment based on a person's arrest or criminal conviction; or
15 (b) Make any inquiry or statement related to the pending arrest or
16 criminal conviction record of any person who is in the process of apply-
17 ing for employment with such employer or agent thereof until after such
18 employer or agent thereof has extended a conditional offer of employment
19 to the applicant.
20 (c) For purposes of this section:
21 (1) with respect to an applicant for temporary employment at a tempo-
22 rary help firm as such term is defined by subdivision five of section
23 nine hundred sixteen of the labor law, an offer to be placed in the
24 temporary help firm's general candidate pool shall constitute a condi-
25 tional offer of employment;
26 (2) "any inquiry" means any question communicated to an applicant in
27 writing or otherwise, or any searches of publicly available records or
28 consumer reports that are conducted for the purpose of obtaining an
29 applicant's criminal background information; and
30 (3) "any statement" means a statement communicated in writing or
31 otherwise to the applicant for purposes of obtaining an applicant's
32 criminal background information regarding: (i) an arrest record; (ii) a
33 conviction record; or (iii) a criminal background check.
34 2. After extending an applicant a conditional offer of employment, an
35 employer, employment agency or agent thereof may inquire about the
36 applicant's arrest or conviction record if before taking any adverse
37 employment action based on such inquiry, the employer, employment agency
38 or agent thereof:
39 (a) provides a written copy of the inquiry to the applicant in a
40 manner to be determined by the division of criminal justice services,
41 and advises the applicant that he or she may submit any available
42 evidence of rehabilitation or good conduct since the offense in ques-
43 tion, which shall be considered in the analysis performed under this
44 article;
45 (b) performs an analysis of the applicant under this article and
46 provides a written copy of such analysis to the applicant in a manner to
47 be determined by the division of criminal justice services, and advises
48 the applicant that he or she may submit any available evidence of reha-
49 bilitation or good conduct since the offense in question, which shall be
50 considered in the analysis performed under this article, which shall
51 include but not be limited to supporting documents that formed the basis
52 for an adverse action based on such analysis and the employer's or
53 employment agency's reasons for taking any adverse action against such
54 applicant; and
55 (c) after giving the applicant the inquiry and analysis in writing
56 pursuant to paragraphs (a) and (b) of this subdivision, allows the
A. 4868 6
1 applicant a reasonable time to respond, which shall be no less than
2 seven business days and during this time, holds the position open for
3 the applicant.
4 3. Nothing in this section shall prevent an employer, employment agen-
5 cy or agent thereof from taking adverse action against any employee or
6 denying employment to any applicant for reasons other than such employee
7 or applicant's arrest or criminal conviction record.
8 4. An applicant shall not be required to respond to any inquiry or
9 statement that violates subdivision one of this section and any refusal
10 to respond to such inquiry or statement or any response in the negative
11 to such inquiry shall not disqualify an applicant from the prospective
12 employment.
13 5. This section shall not apply to any actions taken by an employer or
14 agent thereof that are required pursuant to any state, federal or local
15 law that requires criminal background checks for employment purposes or
16 bars employment based on criminal history. For purposes of this para-
17 graph federal law shall include rules or regulations promulgated by a
18 self-regulatory organization as defined in section 3(a)(26) of the secu-
19 rities exchange act of 1934, as amended. A person who is required to
20 perform a criminal background check pursuant to federal, state or local
21 law may inform the applicant that the prospective license, permit, or
22 employment is subject to a background check and that the person is
23 prohibited by law from licensing, permitting, or employing individuals
24 with certain criminal convictions, though such prohibition may be lifted
25 by a certificate of relief from disabilities or certificate of good
26 conduct under article twenty-three of this chapter.
27 6. This section shall not apply to any actions taken by an employer or
28 agent thereof with regard to an applicant for employment:
29 (a) as a police officer or peace officer, as defined in subdivisions
30 thirty-three and thirty-four of section 1.20 of the criminal procedure
31 law; or
32 (b) in a position that involves law enforcement, is susceptible to
33 bribery or other corruption, as determined by the state police or other
34 agency selected by the governor, or entails the provision of services to
35 or safeguarding of persons who, because of age, disability, infirmity or
36 other condition, are vulnerable to abuse, as determined by the Justice
37 Center for Persons with Special Needs or other agency selected by the
38 governor. If an employer takes adverse action against any applicant for
39 such position based on the applicant's arrest or criminal conviction
40 record, it shall still provide a written copy of such analysis performed
41 under this article to the applicant in a form and manner to be deter-
42 mined by the division.
43 7. The provisions of this section shall be enforceable against public
44 agencies and against private employers by a proceeding brought pursuant
45 to article fifteen of the executive law. For purposes of this subdivi-
46 sion only, the terms "public agency" and "private employer" shall have
47 the meaning given such terms in section seven hundred fifty of this
48 article.
49 § 13. Section 755 of the correction law, as added by chapter 931 of
50 the laws of 1976, is renumbered 756 and amended to read as follows:
51 § 756. Enforcement. [1. In relation to actions by public agencies, the
52 provisions of this article shall be enforceable by a proceeding brought
53 pursuant to article seventy-eight of the civil practice law and rules.
54 2. In relation to actions by private employers, the] The provisions of
55 this article shall be enforceable by the division of human rights pursu-
56 ant to the powers and procedures set forth in article fifteen of the
A. 4868 7
1 executive law, and, concurrently, by the New York city commission on
2 human rights.
3 § 14. Subdivision 8 of section 170.55 of the criminal procedure law,
4 as added by chapter 134 of the laws of 1982 and renumbered by chapter
5 683 of the laws of 1990, is amended to read as follows:
6 8. (a) The granting of an adjournment in contemplation of dismissal
7 shall not be deemed to be a conviction or an admission of guilt. No
8 person shall suffer any disability or forfeiture as a result of such an
9 order. Upon the dismissal of the accusatory instrument pursuant to this
10 section, the arrest and prosecution shall be deemed a nullity and the
11 defendant shall be restored, in contemplation of law, to the status he
12 occupied before his arrest and prosecution.
13 (b) For purposes of employment and licensing, the granting of an
14 adjournment in contemplation of dismissal shall be considered a termi-
15 nation of the matter in the defendant's favor and no adverse employment
16 action may be based on a case that has been adjourned in contemplation
17 of dismissal.
18 § 15. Section 170.56 of the criminal procedure law is amended by
19 adding a new subdivision 5 to read as follows:
20 5. For purposes of employment and licensing, the granting of an
21 adjournment in contemplation of dismissal shall be considered a termi-
22 nation of the matter in the defendant's favor and no adverse employment
23 action may be based on a case that has been adjourned in contemplation
24 of dismissal.
25 § 16. Subdivision 16 of section 296 of the executive law, as amended
26 by section 48-a of part WWW of chapter 59 of the laws of 2017, is
27 amended to read as follows:
28 16. (a) It shall be an unlawful discriminatory practice, unless
29 specifically required or permitted by statute, for any person, agency,
30 bureau, corporation or association, including the state and any poli-
31 tical subdivision thereof, to make any inquiry about, whether in any
32 form of application or otherwise, or to act upon adversely to the indi-
33 vidual involved, any arrest or criminal accusation of such individual
34 not then pending against that individual which was followed by a termi-
35 nation of that criminal action or proceeding in favor of such individ-
36 ual, as defined in subdivision two of section 160.50 of the criminal
37 procedure law, or by a youthful offender adjudication, as defined in
38 subdivision one of section 720.35 of the criminal procedure law, or by a
39 conviction for a violation sealed pursuant to section 160.55 of the
40 criminal procedure law or by a conviction which is sealed pursuant to
41 section 160.59 or 160.58 of the criminal procedure law, in connection
42 with the licensing, employment or providing of credit or insurance to
43 such individual, or by the granting of an adjournment in contemplation
44 of dismissal pursuant to article one hundred seventy of the criminal
45 procedure law; provided, further, that no person shall be required to
46 divulge information pertaining to any arrest or criminal accusation of
47 such individual not then pending against that individual which was
48 followed by a termination of that criminal action or proceeding in favor
49 of such individual, as defined in subdivision two of section 160.50 of
50 the criminal procedure law, or by a youthful offender adjudication, as
51 defined in subdivision one of section 720.35 of the criminal procedure
52 law, or by a conviction for a violation sealed pursuant to section
53 160.55 of the criminal procedure law, or by a conviction which is sealed
54 pursuant to section 160.58 or 160.59 of the criminal procedure law, or
55 by the granting of an adjournment in contemplation of dismissal pursuant
56 to article one hundred seventy of the criminal procedure law. The
A. 4868 8
1 provisions of this subdivision shall not apply to the licensing activ-
2 ities of governmental bodies in relation to the regulation of guns,
3 firearms and other deadly weapons or in relation to an application for
4 employment as a police officer or peace officer as those terms are
5 defined in subdivisions thirty-three and thirty-four of section 1.20 of
6 the criminal procedure law; provided further that the provisions of this
7 subdivision shall not apply to an application for employment or member-
8 ship in any law enforcement agency with respect to any arrest or crimi-
9 nal accusation which was followed by a youthful offender adjudication,
10 as defined in subdivision one of section 720.35 of the criminal proce-
11 dure law, or by a conviction for a violation sealed pursuant to section
12 160.55 of the criminal procedure law, or by a conviction which is sealed
13 pursuant to section 160.58 or 160.59 of the criminal procedure law, or
14 by the granting of an adjournment in contemplation of dismissal pursuant
15 to article one hundred seventy of the criminal procedure law.
16 (b) Any person subjected to an inquiry concerning any arrest or crimi-
17 nal accusation in violation of the provisions of this section shall be
18 entitled to respond in the negative to such question if responding
19 otherwise would require disclosures relating to a case that has been
20 sealed or otherwise terminated in favor of the person, and such negative
21 response, even if technically false, may not be used as a basis for
22 adverse employment action.
23 § 17. Subdivision 7 of section 390-e of the social services law, as
24 added by chapter 459 of the laws of 2006, is amended to read as follows:
25 7. Upon the request of any person [previously] charged with or
26 convicted of one or more criminal offenses who has been denied employ-
27 ment pursuant to subdivision six of this section, the mentoring program
28 shall provide, within thirty days of such request, a written statement
29 setting forth the reasons for such denial. Any such person denied
30 employment pursuant to subdivision six of this section shall be afforded
31 the opportunities for enforcement available pursuant to section seven
32 hundred [fifty-five] fifty-six of the correction law.
33 § 18. This act shall take effect on the ninetieth day after it shall
34 have become a law. Effective immediately the addition, amendment and/or
35 repeal of any rule or regulation necessary for the implementation of
36 this act on its effective date are authorized to be made and completed
37 on or before such date.