 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1527
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  PERRY, WEPRIN, EPSTEIN, RICHARDSON, DICKENS,
          SIMON -- read once and referred to the Committee on Correction
 
        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:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02835-01-1

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

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

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

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