Prohibits employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal

Summary of specific provisions

Section 1 amends the Human Rights Law, Executive Law Section 296(16), to provide that licensing agencies, employers, and providers of credit or insurance shall not make inquiries about, or take adverse actions based on, an arrest or criminal accusation which has been adjourned in contem- plation of dismissal (ACD'd). It further provides that individuals whose criminal charges have been adjourned in contemplation of dismissal shall not be required to divulge information about these charges in connection with employment, licensing, credit or insurance. To accomplish this purpose, the bill provides that a case which has been ACD'd, and has not been restored to the court calendar, shall not be considered a "pending case" for purposes of this provision.

Sections 2 and 3 amend the sections of the criminal procedure law which authorize ACD's, sections 170.55 and 170.56 of the CPL, to provide that once a case has been ACD'd, employers and governmental agencies which issue various certificates, licenses, permits or authorizations that are required by law as a condition of gaining or holding employment in vari- ous types of positions, businesses and professions, shall treat the ACD as a termination of the case in the defendant's favor. The intent of this provision is that an employer or public agency which has suspended or withheld a permit, license or clearance required by an individual that is necessary for the individual to gain or retain employment, shall not consider the matter pending until the final order of dismissal is entered by the court, but shall proceed upon being notified of the ACD, as it would proceed upon being notified of a dismissal or acquittal. This provision would not limit the discretion of public or private employers who have taken adverse action subsequent to an arrest but before the ACD was ordered.

Existing law

The protections afforded by Section 1 of the bill are already afforded by existing law to persons whose criminal cases ended in dismissal or acquittal; in youthful offender adjudications; in convictions of

noncriminal violations or infractions, with certain limited exceptions; and in convictions of drug offenses where the defendant has completed a drug treatment program and has satisfied the court that he is deserving of this protection.

Existing law contains certain exemptions relating to gun licensing and law enforcement positions. These would be unchanged by the amendments. The exemptions would apply to persons who received ACD's, as they apply to the other categories of protected persons.

CPL section 170.55, subd. 8, already contains a provision that "no person shall suffer any disability or forfeiture" as a result of an order granting an ACD. It further states that upon final dismissal, "the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution." The proposed amendment in section 2 of the bill clarifies the existing statute by specifying that the person who has been granted the ACD is entitled to restoration of certain legal rights, albeit less than the sweeping legal protection he will receive once the dismissal is final. CPL section 170.56, relating to ACDs in marijuana cases, contains the same language as CPL 170.55 regarding the arrest and prosecution being "deemed a nullity" upon final dismissal of the matter.

Justification

Currently, state laws against criminal record discrimination protect people whose arrests did not lead to conviction, so long as the charges are not pending. However, there are no protections for people who have received adjournments in contemplation of dismissal (ACD's), even though they will be protected as soon as the dismissal occurs. A case that has been ACD'd is not yet sealed under the provisions of the Criminal Proce- dure Law, and therefore is not considered "terminated" in the defend- ant's favor under the existing statute, but it routinely will be dismissed and sealed after the passage of six months or a year, depend- ing on the charge. See CPL § 170.55, 170.56, 210.46, 210.47, 215.10.

Under existing law, employers can and often do deny job applicants who have received an ACD's on the theory that the case is "pending," even though just a tiny fraction of ACD'd cases are ever restored to the calendar and prosecuted. This places an unfair and unnecessary obstacle in the path of job applicants, where the prosecution has already conceded that the person did nothing that requires pursuit of criminal charges. Executive Law Section 296(16) should be amended to add protections against criminal record discrimination for anyone who has received an adjournment in contemplation of dismissal, unless and until that person's charges are restored to the court calendar. Additionally, employers are often required to fire workers or suspend them without pay for the 6-month or 12-month period of an ACD, because a government agen- cy that must authorize the employment considers the case "pending" and withholds the necessary authorization. This is an unnecessary and oner- ous burden on employees, particularly low-income employees in fast-grow-

ing service professions like health and education. When a case has been ACD'd, and the employer is willing to retain or reinstate the employee, a governmental licensing or supervisory agency should not block retention or reinstatement merely because time must pass before the ACD "ripens" into a dismissal. Because ACD'd cases almost always result in dismissal, it would be unfair for the state and its instrumentalities to continue to deny the individual a source of income, merely because he was arrested, once the Court has ordered the ACD and thereby determined that the case does not warrant continued prosecution.

Prior legislative history

New Bill

Fiscal implications

None.

Effective date

90 days.