Bill Text: NY S08043 | 2019-2020 | General Assembly | Amended


Bill Title: Requires public agencies and private employers to adopt a policy that requires the public agency or private employer to provide a person who has been convicted of a crime an opportunity to submit an explanation of the facts surrounding the offense and conviction and any other information the person deems relevant to the issue prior to making a determination regarding the convicted person's employment or a determination to refuse to issue a license to such person; requires contracts not be terminated, canceled or not renewed due to a conviction without an opportunity to submit an explanation.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-08-05 - PRINT NUMBER 8043A [S08043 Detail]

Download: New_York-2019-S08043-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         8043--A

                    IN SENATE

                                     March 12, 2020
                                       ___________

        Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
          printed to be committed to the Committee on Crime Victims,  Crime  and
          Correction -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee

        AN  ACT to amend the correction law, the general obligations law and the
          civil rights law, in relation to enacting the "second chance act"

          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 "second
     2  chance act".
     3    § 2. The article heading of article 23-A of  the  correction  law,  as
     4  added by chapter 931 of the laws of 1976, is amended to read as follows:
     5               LICENSURE AND EMPLOYMENT OF PERSONS [PREVIOUSLY]
     6                 CONVICTED OF ONE OR MORE CRIMINAL OFFENSES
     7    §  3.  Section 751 of the correction law, as amended by chapter 284 of
     8  the laws of 2007, is amended to read as follows:
     9    § 751. Applicability. The provisions of this article  shall  apply  to
    10  any  application by any person for a license or employment at any public
    11  or private employer, who has previously been convicted of  one  or  more
    12  criminal offenses in this state or in any other jurisdiction, and to any
    13  license or employment held by any person whose conviction of one or more
    14  criminal offenses in this state or in any other jurisdiction preceded or
    15  succeeded  such  employment  or  granting  of  a license, except where a
    16  mandatory forfeiture, disability or bar to employment is imposed by law,
    17  and has not been removed by an executive pardon, certificate  of  relief
    18  from  disabilities or certificate of good conduct. Nothing in this arti-
    19  cle shall be construed to affect any right an  employer  may  have  with
    20  respect to an intentional misrepresentation in connection with an appli-
    21  cation  for employment made by a prospective employee or previously made
    22  by a current employee.
    23    § 4. Section 752 of the correction law, as amended by chapter  284  of
    24  the laws of 2007, is amended to read as follows:
    25    §  752.  Unfair discrimination against persons previously convicted of
    26  one or more criminal offenses prohibited. No application for any license

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11000-27-0

        S. 8043--A                          2

     1  or employment, and no employment or license held by  an  individual,  to
     2  which  the provisions of this article are applicable, shall be denied or
     3  acted upon adversely by reason of the  [individual's]  individual  being
     4  convicted  of  one  or  more criminal offenses or having been previously
     5  convicted of one or more criminal offenses, or by reason of a finding of
     6  lack of "good moral character" when such finding is based upon the  fact
     7  that  the individual has previously been convicted of one or more crimi-
     8  nal offenses, unless:
     9    (1) there is a direct relationship between one or more of the previous
    10  criminal offenses and the specific license or employment sought or  held
    11  by the individual; or
    12    (2)  the  issuance  or  continuation of the license or the granting or
    13  continuation of the employment would involve  an  unreasonable  risk  to
    14  property  or  to  the  safety  or welfare of specific individuals or the
    15  general public.
    16    § 5. The correction law is amended by adding a new  section  752-a  to
    17  read as follows:
    18    §  752-a.  Conviction  while  employed  or  licensed.  1. Except where
    19  continued licensure or employment is prohibited by law,  no  person  who
    20  holds  a  license  or  who is employed by any public or private employer
    21  shall have such license revoked  or  shall  be  denied  continuation  or
    22  resumption  of  such employment by reason of such individual having been
    23  convicted of one or more criminal offenses, or by reason of a finding of
    24  a lack of good moral character, when such finding is based upon the fact
    25  that such  individual  has  been  convicted  of  one  or  more  criminal
    26  offenses, unless:
    27    (a) there is a direct relationship between one or more of the criminal
    28  offenses and the specific license or employment held by such individual;
    29  or
    30    (b)  continuation  of the license or the continuation or resumption of
    31  such employment would involve an unreasonable risk to property or to the
    32  safety or welfare of specific individuals or the general public.
    33    2. As used  in  this  section,  the  term  "convicted"  shall  mean  a
    34  conviction for a crime other than a class B violent felony as defined in
    35  the penal law, or a class A or class A-II felony as defined in the penal
    36  law, other than a class A or class A-II felony as defined in article two
    37  hundred  twenty  of the penal law, or an offense in another jurisdiction
    38  which includes all of the essential elements of any such crime.
    39    § 6. Subdivision 1 of section 753 of the correction law, as  added  by
    40  chapter 931 of the laws of 1976, paragraph (b) as amended by chapter 284
    41  of the laws of 2007, is amended and a new subdivision 3 is added to read
    42  as follows:
    43    1.  In making a determination pursuant to section seven hundred fifty-
    44  two or section seven hundred fifty-two-a of this [chapter] article,  the
    45  public agency or private employer shall consider the following factors:
    46    (a)  The  public  policy  of  this state, as expressed in this act, to
    47  encourage the licensure and employment of persons  previously  convicted
    48  of one or more criminal offenses.
    49    (b)  The  specific  duties and responsibilities necessarily related to
    50  the license or employment sought or held by the person.
    51    (c) The bearing, if any, the criminal offense or  offenses  for  which
    52  the  person  was previously convicted will have on his or her fitness or
    53  ability to perform one or more such duties or responsibilities.
    54    (d) The time which has elapsed since the occurrence  of  the  criminal
    55  offense or offenses.

        S. 8043--A                          3

     1    (e)  The  age  of the person at the time of occurrence of the criminal
     2  offense or offenses.
     3    (f) The seriousness of the offense or offenses.
     4    (g)  Any information produced by the person, or produced on his or her
     5  behalf, including in regard  to  his  or  her  rehabilitation  and  good
     6  conduct.
     7    (h)  The  legitimate interest of the public agency or private employer
     8  in protecting property, and the safety and welfare of specific  individ-
     9  uals or the general public.
    10    3.  Except  where  continued licensure or employment of such person is
    11  prohibited by law under  such  circumstances,  each  public  agency  and
    12  private  business  entity  and  corporation shall adopt a   policy  that
    13  requires  the  public  agency  or private business entity or corporation
    14  to provide such convicted person with an opportunity to submit an expla-
    15  nation of  the  facts  surrounding the  offense  and  conviction and any
    16  other information such person deems relevant  to  the  issue,  prior  to
    17  making  a  determination  pursuant to section seven hundred fifty-two or
    18  seven hundred fifty-two-a of this article. Nothing  in   this   subdivi-
    19  sion  shall  prohibit a public agency, private business entity or corpo-
    20  ration duly authorized  to  conduct business in this state from imposing
    21  sanctions  upon  a  person  convicted  of a crime in accordance with the
    22  regulations, policies  and practices of the  public  agency  or  private
    23  employer.
    24    §  7.  The  general obligations law is amended by adding a new section
    25  5-338 to read as follows:
    26    § 5-338. Agreements  concerning  termination  due  to  conviction.  1.
    27  Termination. Except where continuation of such commercial activities are
    28  prohibited by law under such circumstances, every covenant, agreement or
    29  understanding  between a governmental entity, private business entity or
    30  corporation and  a person or persons enabling such person or persons  to
    31  carry  out  specified    commercial activities, which includes  a clause
    32  requiring the automatic termination of the covenant, agreement or under-
    33  standing upon a conviction of such person or persons shall be deemed  to
    34  be void as against public policy and wholly unenforceable.
    35    2.  Explanation.  Except  where continuation of such covenants, agree-
    36  ments or understandings are prohibited by law under such  circumstances,
    37  all  covenants,  agreements  or  understandings between a   governmental
    38  entity, private business entity or corporation and a person  or  persons
    39  enabling  such  person  or persons to  carry  out  specified  commercial
    40  activities shall include and extend to such person or persons the  right
    41  to  an opportunity to submit an explanation of the facts surrounding any
    42  conviction or alleged offense as well as any other information the party
    43  deems relevant to the conviction or alleged offense prior to  any  party
    44  terminating  a   business contract  or  contract  of employment  due  to
    45  a conviction or alleged offense.
    46    3. Sanctions.  Nothing in this section shall prohibit  a  governmental
    47  entity, private business  entity or corporation from   imposing    sanc-
    48  tions    upon   a person or persons convicted of a crime  in  accordance
    49  with  the  regulations, policies and practices of the governmental enti-
    50  ty, private business entity or corporation. Unless otherwise  authorized
    51  by  law,  such sanctions shall not be of a duration that would in effect
    52  terminate the viability of the affiliated business.
    53    4. Comparability.  If a review of the facts shall  find  that  in  the
    54  history  of the existence of the private business entity or corporation,
    55  a person or persons holding a similar license or agreement to  do  busi-
    56  ness  in  the  name  of  the private business entity or corporation, who

        S. 8043--A                          4

     1  while holding such license or prior to being granted such  license,  was
     2  convicted  of  a  felony  or  any offense for which the private business
     3  entity or corporation could have claimed  and  exercised  the  right  to
     4  terminate  the  business relationship or permit to act under the name of
     5  the private business entity or corporation, but  such  private  business
     6  entity  or  corporation,  in  exercise  of  its discretion, allowed such
     7  person or persons to acquire or continue to hold and    exercise    such
     8  license  and authority  to  do business, and the private business entity
     9  or corporation took no action to terminate  such    agreement,  and  the
    10  private  business  entity  or  corporation  determined not to provide an
    11  extension of forgiveness and a second chance, the private business enti-
    12  ty or corporation shall state why it determined not to grant such second
    13  chance to such person and the burden of proof shall be on  such  private
    14  business  entity  or  corporation  to  demonstrate  with substantive and
    15  convincing proof how such extension of forgiveness and a  second  chance
    16  would  be  detrimental to the interest of the private business entity or
    17  corporation.
    18    § 8. The civil rights law is amended by adding a new section  79-q  to
    19  read as follows:
    20    § 79-q. Right to a reasonable review of facts and a reasonable consid-
    21  eration  for  the  extension of forgiveness and a second chance.  Except
    22  where continuation of such contract is  prohibited  by  law  under  such
    23  circumstances, no governmental entity, private business entity or corpo-
    24  ration  shall terminate, cancel or refuse to renew any contract based on
    25  an individual being convicted of one or more criminal  offenses  without
    26  such  individual  being given an opportunity to submit an explanation of
    27  the facts surrounding any conviction or alleged offense as well  as  any
    28  other  information  the  individual  deems relevant to the conviction or
    29  alleged offense and provided a reasonable review  of  the  facts  and  a
    30  reasonable  consideration  for the extension of forgiveness and a second
    31  chance.
    32    § 9. This act shall take effect on the sixtieth  day  after  it  shall
    33  have become a law.
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