Ban Job Bias for Ex-Offenders

Section 1. This act shall be known and may be cited as "The New York State Fair Chance Act".

§ 2. Subdivisions 10 and 11 of section 8-107 of the administrative code of the city of New York, subdivision 10 as amended by local law number 63 of the city of New York for the year 2015, paragraphs (a) and (c) of subdivision 10 and subdivision 11 as amended by local law number 63 of the city of New York for the year 2018, are amended to read as follows:

10. Criminal conviction; employment. (a) It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to deny employment to any person or take adverse action against any employee by reason of such person or employee having been convicted of one or more criminal offenses, or by reason of a finding of a lack of "good moral character" which is based on:

(i) such person or employee having been convicted of one or more criminal offenses, when such denial or adverse action is in violation of the provisions of article [23-a] twenty-three-A of the correction law regardless of when such conviction occurred, including if such conviction occurred while such person was employed at the job at issue; or

(ii) such person or employee having a final judgment of guilt entered for a felony more than ten years ago and a misdemeanor more than five 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.

LBD08949-02-9

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ment was entered or the release from incarceration, whichever date is later, until the date of the adverse action in question. Criminal acts committed outside the state shall be classified as felonies or misdemeanors committed within the state based on the maximum sentence that could have been imposed for such conviction under the laws of such foreign jurisdiction.

(b) For purposes of this subdivision, "employment" shall not include [membership in any law enforcement agency] employment as a police officer or a peace officer as defined in section 2.10 of the criminal procedure law.

(c) Pursuant to section [755] seven hundred fifty-six of the correction law, the provisions of this subdivision shall be enforceable against public agencies by a proceeding brought pursuant to article [78] seventy-eight of the civil practice law and rules, and the provisions of this subdivision shall be enforceable against private employers by the commission through the administrative procedure provided for in this chapter or as provided in chapter 5 of this title. For purposes of this paragraph only, the terms "public agency" and "private employer" have the meaning given such terms in section [750] seven hundred fifty of the correction law.

11. Arrest record; employment. It shall be an unlawful discriminatory practice, unless specifically required or permitted by any other law, for any person to:

(a) Deny employment to any applicant or act adversely upon any employee by reason of an arrest or criminal accusation of such applicant or employee when such denial or adverse action is in violation of subdivision [16] sixteen of section [296] two hundred ninety-six of article [15] fifteen of the executive law; or

(b) Make any inquiry as defined in subdivision ten of this section, in writing or otherwise, regarding any arrest or criminal accusation of an applicant or employee when such inquiry is in violation of subdivision [16] sixteen of section [296] two hundred ninety-six of article [15] fifteen of the executive law.

§ 3. Subparagraph (iii) of paragraph (b) and paragraphs (d) and (e) of subdivision 11-a of section 8-107 of the administrative code of the city of New York, as amended by local law number 63 of the city of New York for the year 2018, are amended to read as follows:

(iii) After giving the applicant the inquiry and analysis in writing pursuant to subparagraphs (i) and (ii) of this paragraph, allows the applicant a reasonable time to respond, which shall be no less than [three] seven business days and during this time, holds the position open for the applicant.

(d) An applicant shall not be required to respond to any inquiry or statement that violates paragraph (a) of this subdivision and any refusal to respond to such inquiry or statement shall not disqualify an applicant from the prospective employment. Nothing in this paragraph shall prohibit an applicant from voluntarily disclosing information pertaining to his or her criminal history.

(e) This subdivision shall not apply to any actions taken by an employer or agent thereof pursuant to any state, federal or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. For purposes of this paragraph federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in section 3(a)(26) of the securities exchange act of 1934, as amended. A person who is required to perform a criminal background check pursuant to federal, state or local law may

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inform the applicant that the prospective license, permit, or employment is subject to a background check and that the person is prohibited by law from licensing, permitting, or employing individuals with certain criminal convictions, though such prohibition may be lifted by a certificate of relief from disabilities or certificate of good conduct under article twenty-three of the correction law.

§ 4. Section 8-102 of the administrative code of the city of New York is amended by adding a new definition in alphabetical order to read as follows:

Criminal offense. The term "criminal offense" means any offense as defined in section 55.10 of the penal law.

§ 5. Subdivisions 2 and 5 of section 750 of the correction law, as added by chapter 931 of the laws of 1976, are amended and a new subdivision 6 is added to read as follows:

(2) "Private employer" means any person, company, corporation, labor organization or association which employs [ten] four or more persons.

(5) "Employment" means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that "employment" shall not, for the purposes of this article, include [membership in any law enforcement agency] employment as a police officer or a peace officer as defined in section 2.10 of the criminal procedure law.

(6) "Criminal offense" means any offense as defined in section 55.10 of the penal law.

§ 6. Section 751 of the correction law, as amended by chapter 284 of the laws of 2007, is amended to read as follows:

§ 751. Applicability. The provisions of this article shall apply to any application by any person for a license or employment at any public or private employer, who is currently charged with or who has previously been convicted of one or more criminal offenses in this state or in any other jurisdiction, and to any license or employment held by any person whose pending arrest for or conviction of one or more criminal offenses in this state or in any other jurisdiction preceded such employment or granting of a license, and to any license or employment held by any person whose pending arrest for or conviction of one or more criminal offenses in this state or in any other jurisdiction occurred during the period of such employment or granting of a license, except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct. Nothing in this article shall be construed to affect any right an employer may have with respect to an intentional misrepresentation in connection with an application for employment made by a prospective employee or previously made by a current employee.

§ 7. Section 752 of the correction law, as amended by chapter 284 of the laws of 2007, is amended to read as follows:

§ 752. Unfair discrimination against persons [previously] charged with or convicted of one or more criminal offenses prohibited. No application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual's having been charged with one or more offenses or having been [previously] convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the individual has [previously] been charged with or convicted of one or more criminal offenses, unless:

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(1) there is a direct relationship between one or more of the [previous] criminal offenses and the specific license or employment sought or held by the individual; [or] and

(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

§ 8. The article heading of article 23-A of the correction law, as added by chapter 931 of the laws of 1976, is amended to read as follows:

LICENSURE AND EMPLOYMENT OF PERSONS [PREVIOUSLY]

CONVICTED OF ONE OR MORE CRIMINAL OFFENSES

§ 9. The section heading and subdivision 1 of section 753 of the correction law, as added by chapter 931 of the laws of 1976, paragraph (b) of subdivision 1 as amended by chapter 284 of the laws of 2007, are amended to read as follows:

Factors to be considered concerning a [previous] criminal charge or conviction; presumption. 1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons [previously] charged with or convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was [previously] charged with or convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

§ 10. Section 753 of the correction law is amended by adding a new subdivision 3 to read as follows:

3. A presumption of rehabilitation in regard to an offense or offenses previously committed shall exist:

(a) with regard to one or more previous felony convictions, when the person so convicted has not been convicted of any additional crimes in the ten years following entry of judgment or release from jail or prison, whichever date is latest; and

(b) with regard to one or more previous misdemeanor convictions, when the person so convicted has not been convicted of any additional crimes in the five years following entry of judgment or release from jail or prison, whichever date is latest.

§ 11. Section 754 of the correction law, as added by chapter 931 of the laws of 1976, is amended to read as follows:

§ 754. Written statement upon denial of license or employment or has been subject to adverse employment action. At the request of any person

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[previously] charged with or convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial or adverse employment action.

§ 12. The correction law is amended by adding a new section 755 to read as follows:

§ 755. Arrest and conviction records; employer inquiries. 1. It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to:

(a) Declare, print or circulate or cause to be declared, printed or circulated any solicitation, advertisement or publication, which expresses, directly or indirectly, any limitation, or specification in employment based on a person's arrest or criminal conviction; or

(b) Make any inquiry or statement related to the pending arrest or criminal conviction record of any person who is in the process of applying for employment with such employer or agent thereof until after such employer or agent thereof has extended a conditional offer of employment to the applicant.

(c) For purposes of this section: