Attention New York Employers: New York Clean Slate Act Takes Effect

Nearly one year after it was signed by Governor Kathy Hochul, the New York Clean Slate Act (the “Act”) took effect on November 16, 2024. Under the Act, New Yorkers are now eligible to have certain conviction records automatically sealed after a specified time period and employers must comply with new disclosure requirements when considering criminal history in connection with employment decisions.

Sealing of Convictions

The Act provides that the New York State Unified Court System has three years (i.e., until November 16, 2027) to seal all eligible convictions described below. After that point, such convictions will no longer be accessible and, going forward, all eligible convictions will be automatically sealed as per the Act’s requirements. After a conviction is sealed, the conviction will become unavailable to most employers that conduct background checks during the hiring process or otherwise in the course of employment.

Eligible Convictions for Sealing

Most misdemeanor and felony charges under New York State law are eligible for sealing under the Act. However, certain convictions such as sex offenses, sexually violent offenses, and non-drug related Class A felonies (including murder) are not eligible for sealing under the Act.

As an initial matter, the automatic sealing only applies to criminal records under New York State law, meaning federal convictions and those from other states will not be sealed. For eligible misdemeanor convictions, the records are sealed three years after sentencing or three years after release from incarceration—whichever is later. Felony convictions are also eligible to be sealed eight years after sentencing or eight years after release from incarceration—whichever is later.

Convictions will not be sealed when there are pending criminal charges or the individual is on probation or under parole supervision when the time period for automatic sealing elapses.

Covered Employers

The Act applies to the vast majority of New York employers. However, employers that are required by law to conduct fingerprint-based background checks, such as employers in childcare, eldercare, and disability care, will have access to records that would otherwise be sealed under the Act (“Exempt Employers”). 

Employer Inquiries

The Act amends the New York State Human Rights Law to make it an unlawful discriminatory practice for employers to inquire about or make decisions based upon sealed convictions, except as otherwise specifically permitted under the Act.

Employer Notice Obligations

The Act imposes new notice requirements for employers that obtain criminal history information from a background check. Employers receiving criminal history information are now required to send a copy of such information to the applicant or employee and inform the applicant or employee of their right to “seek correction of any incorrect information contained in such information pursuant to the regulations and procedures established by the Division of Criminal Justice Services.” Additionally, the employer must also provide the applicant or employee with a copy of Article 23-A of the New York Correction Law. Notably, these notice requirements apply regardless of whether the employer is planning to take adverse action against the applicant or employee based on the criminal history information.

Protection Against Negligence Claims

The Act readily provides covered employers with an affirmative defense to negligent hiring, retention, and supervision claims based on criminal history. For example, if an employer conducted a background check on an applicant and the report did not contain any convictions because the convictions were sealed under the law, and the applicant later engaged in wrongful conduct after they were hired, the Act prohibits litigants from introducing the sealed convictions as evidence of the employer’s negligent hiring. This affirmative defense does not apply to Exempt Employers.

The law imposes heightened responsibilities on Exempt Employers. Under Section 50-G of the New York Civil Rights Law, Exempt Employers can now be found liable for negligence if they (i) “knowingly and willfully” disclose sealed records without the individual’s consent; (ii) the disclosure causes injury to the individual; and (iii) the employer’s breach of their duty of care was a “substantial factor in the events that caused the injury suffered” by the individual.

Overall, employers who employ workers in New York State are strongly encouraged to update their background check procedures, create new policies regarding the handling of criminal records, and speak to counsel to ensure legal compliance.