New York's Clean Slate Act Goes Into Effect – What Employers Should Know About Background Checks

The New York State Clean Slate Act (the "Act") went into effect Saturday, November 16, 2024, bringing with it new obligations for New York employers who rely on criminal background checks. Under the Act, certain criminal convictions will be automatically sealed after specified periods of time. In light of these changes, employers must be particularly mindful of the criminal history information being considered in connection with hiring or an employees' continued employment.

Employer Obligations Under the Act

Employers must comply with more stringent notice obligations under the Act. While employers were already required to provide a copy of Article 23-A of the New York Correction Law as part of the background check process, they must now also provide a copy of the criminal history information they receive to applicants and employees, and notify applicants and employees of "their right to seek correction of any incorrect information." Notably, whereas employers previously only needed to disclose receipt of criminal history information if they planned to take adverse action, employers must now provide notice regardless of whether the employer plans to take adverse action based on the applicant's criminal history information. 

Under the Act, the State Human Rights Law prohibits employers from inquiring about sealed records or discriminating against applicants or employees based upon sealed records. In light of this prohibition, employers will be protected from certain claims against negligent hiring and plaintiffs will be prohibited from introducing sealed convictions as evidence of negligence.   

Eligibility

Most misdemeanor and felony charges under New York law are eligible for sealing.

• Misdemeanors are sealed three years from the individual's release from prison, or from the date of sentencing if there was no sentence of incarceration.
• Felonies are sealed eight years after release from prison, or from the date of sentencing if there was no sentence of incarceration.

Certain convictions, however, including non-drug-related Class A convictions, sexually violent offenses, and sex offenses are not eligible to be sealed under the Act. Federal convictions and conviction records from other states are similarly ineligible.

Requirements for Sealing

Sealing is automatic except where the convicted individual has a criminal charge pending (including charges pending in another jurisdiction) or is on probation or under parole supervision when the statutory time period for automatic sealing elapses. If the individual is convicted of a new felony or misdemeanor before their prior conviction is sealed, the clock restarts based on the most recent conviction.

Exemptions

The Act applies to the majority of New York employers. However, employers that are otherwise required by law to conduct fingerprint-based background checks, such as employers working with children, the elderly, or other vulnerable populations, will have access to records that would otherwise be sealed under the Act.

Employer Takeaways

Employers are encouraged to review their practices and policies concerning criminal background checks and the use of conviction records. Employers should continue to consult with counsel before taking adverse employment action based on an applicant or employee's criminal history.