Bill Text: NY A04868 | 2019-2020 | General Assembly | Introduced
Bill Title: Prohibits discrimination based on a person's arrest record or criminal conviction.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2020-01-08 - referred to correction [A04868 Detail]
Download: New_York-2019-A04868-Introduced.html
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. LBD08949-02-9A. 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 mayA. 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-53ly] 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-2ous] 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 personA. 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 theA. 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, the52provisions of this article shall be enforceable by a proceeding brought53pursuant to article seventy-eight of the civil practice law and rules.542. 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 theA. 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. TheA. 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.
