 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           338
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
          printed to be committed to the Committee on Crime Victims,  Crime  and
          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.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02835-01-1

        S. 338                              2
 
     1    § 4. Section 752 of the correction law, as amended by chapter  284  of
     2  the laws of 2007, is amended to read as follows:
     3    §  752.  Unfair discrimination against persons previously convicted of
     4  one or more criminal offenses prohibited. No application for any license
     5  or employment, and no employment or license held by  an  individual,  to
     6  which  the provisions of this article are applicable, shall be denied or
     7  acted upon adversely by reason of the  [individual's]  individual  being
     8  convicted  of  one  or  more criminal offenses or having been previously
     9  convicted of one or more criminal offenses, or by reason of a finding of
    10  lack of "good moral character" when such finding is based upon the  fact
    11  that  the individual has previously been convicted of one or more crimi-
    12  nal offenses, unless:
    13    (1) there is a direct relationship between one or more of the previous
    14  criminal offenses and the specific license or employment sought or  held
    15  by the individual; or
    16    (2)  the  issuance  or  continuation of the license or the granting or
    17  continuation of the employment would involve  an  unreasonable  risk  to
    18  property  or  to  the  safety  or welfare of specific individuals or the
    19  general public.
    20    § 5. The correction law is amended by adding a new  section  752-a  to
    21  read as follows:
    22    §  752-a.  Conviction  while  employed  or  licensed.  1. Except where
    23  continued licensure or employment is prohibited by law,  no  person  who
    24  holds  a  license  or  who is employed by any public or private employer
    25  shall have such license revoked  or  shall  be  denied  continuation  or
    26  resumption  of  such employment by reason of such individual having been
    27  convicted of one or more criminal offenses, or by reason of a finding of
    28  a lack of good moral character, when such finding is based upon the fact
    29  that such  individual  has  been  convicted  of  one  or  more  criminal
    30  offenses, unless:
    31    (a) there is a direct relationship between one or more of the criminal
    32  offenses and the specific license or employment held by such individual;
    33  or
    34    (b)  continuation  of the license or the continuation or resumption of
    35  such employment would involve an unreasonable risk to property or to the
    36  safety or welfare of specific individuals or the general public.
    37    2. As used  in  this  section,  the  term  "convicted"  shall  mean  a
    38  conviction for a crime other than a class B violent felony as defined in
    39  the penal law, or a class A or class A-II felony as defined in the penal
    40  law, other than a class A or class A-II felony as defined in article two
    41  hundred  twenty  of the penal law, or an offense in another jurisdiction
    42  which includes all of the essential elements of any such crime.
    43    § 6. Subdivision 1 of section 753 of the correction law, as  added  by
    44  chapter 931 of the laws of 1976, paragraph (b) as amended by chapter 284
    45  of the laws of 2007, is amended and a new subdivision 3 is added to read
    46  as follows:
    47    1.  In making a determination pursuant to section seven hundred fifty-
    48  two or section seven hundred fifty-two-a of this [chapter] article,  the
    49  public agency or private employer shall consider the following factors:
    50    (a)  The  public  policy  of  this state, as expressed in this act, to
    51  encourage the licensure and employment of persons  previously  convicted
    52  of one or more criminal offenses.
    53    (b)  The  specific  duties and responsibilities necessarily related to
    54  the license or employment sought or held by the person.

        S. 338                              3
 
     1    (c) The bearing, if any, the criminal offense or  offenses  for  which
     2  the  person  was previously convicted will have on his or her fitness or
     3  ability to perform one or more such duties or responsibilities.
     4    (d)  The  time  which has elapsed since the occurrence of the criminal
     5  offense or offenses.
     6    (e) The age of the person at the time of occurrence  of  the  criminal
     7  offense or offenses.
     8    (f) The seriousness of the offense or offenses.
     9    (g)  Any information produced by the person, or produced on his or her
    10  behalf, including in regard  to  his  or  her  rehabilitation  and  good
    11  conduct.
    12    (h)  The  legitimate interest of the public agency or private employer
    13  in protecting property, and the safety and welfare of specific  individ-
    14  uals or the general public.
    15    3.  Except  where  continued licensure or employment of such person is
    16  prohibited by law under  such  circumstances,  each  public  agency  and
    17  private  business  entity  and  corporation shall adopt a   policy  that
    18  requires  the  public  agency  or private business entity or corporation
    19  to provide such convicted person with an opportunity to submit an expla-
    20  nation of  the  facts  surrounding the  offense  and  conviction and any
    21  other information such person deems relevant  to  the  issue,  prior  to
    22  making  a  determination  pursuant to section seven hundred fifty-two or
    23  seven hundred fifty-two-a of this article. Nothing  in   this   subdivi-
    24  sion  shall  prohibit a public agency, private business entity or corpo-
    25  ration duly authorized  to  conduct business in this state from imposing
    26  sanctions  upon  a  person  convicted  of a crime in accordance with the
    27  regulations, policies  and practices of the  public  agency  or  private
    28  employer.
    29    §  7.  The  general obligations law is amended by adding a new section
    30  5-338 to read as follows:
    31    § 5-338. Agreements  concerning  termination  due  to  conviction.  1.
    32  Termination. Except where continuation of such commercial activities are
    33  prohibited by law under such circumstances, every covenant, agreement or
    34  understanding  between a governmental entity, private business entity or
    35  corporation and  a person or persons enabling such person or persons  to
    36  carry  out  specified    commercial activities, which includes  a clause
    37  requiring the automatic termination of the covenant, agreement or under-
    38  standing upon a conviction of such person or persons shall be deemed  to
    39  be void as against public policy and wholly unenforceable.
    40    2.  Explanation.  Except  where continuation of such covenants, agree-
    41  ments or understandings are prohibited by law under such  circumstances,
    42  all  covenants,  agreements  or  understandings between a   governmental
    43  entity, private business entity or corporation and a person  or  persons
    44  enabling  such  person  or persons to  carry  out  specified  commercial
    45  activities shall include and extend to such person or persons the  right
    46  to  an opportunity to submit an explanation of the facts surrounding any
    47  conviction or alleged offense as well as any other information the party
    48  deems relevant to the conviction or alleged offense prior to  any  party
    49  terminating  a   business contract  or  contract  of employment  due  to
    50  a conviction or alleged offense.
    51    3. Sanctions.  Nothing in this section shall prohibit  a  governmental
    52  entity, private business  entity or corporation from   imposing    sanc-
    53  tions    upon   a person or persons convicted of a crime  in  accordance
    54  with  the  regulations, policies and practices of the governmental enti-
    55  ty, private business entity or corporation. Unless otherwise  authorized

        S. 338                              4
 
     1  by  law,  such sanctions shall not be of a duration that would in effect
     2  terminate the viability of the affiliated business.
     3    4.  Comparability.    If  a review of the facts shall find that in the
     4  history of the existence of the private business entity or  corporation,
     5  a  person  or persons holding a similar license or agreement to do busi-
     6  ness in the name of the private  business  entity  or  corporation,  who
     7  while  holding  such license or prior to being granted such license, was
     8  convicted of a felony or any offense  for  which  the  private  business
     9  entity  or  corporation  could  have  claimed and exercised the right to
    10  terminate the business relationship or permit to act under the  name  of
    11  the  private  business  entity or corporation, but such private business
    12  entity or corporation, in  exercise  of  its  discretion,  allowed  such
    13  person  or  persons  to  acquire or continue to hold and  exercise  such
    14  license and authority  to  do business, and the private business  entity
    15  or  corporation  took  no  action to terminate such   agreement, and the
    16  private business entity or corporation  determined  not  to  provide  an
    17  extension of forgiveness and a second chance, the private business enti-
    18  ty or corporation shall state why it determined not to grant such second
    19  chance  to  such person and the burden of proof shall be on such private
    20  business entity or  corporation  to  demonstrate  with  substantive  and
    21  convincing  proof  how such extension of forgiveness and a second chance
    22  would be detrimental to the interest of the private business  entity  or
    23  corporation.
    24    §  8.  The civil rights law is amended by adding a new section 79-q to
    25  read as follows:
    26    § 79-q. Right to a reasonable review of facts and a reasonable consid-
    27  eration for the extension of forgiveness and a second  chance.    Except
    28  where  continuation  of  such  contract  is prohibited by law under such
    29  circumstances, no governmental entity, private business entity or corpo-
    30  ration shall terminate, cancel or refuse to renew any contract based  on
    31  an  individual  being convicted of one or more criminal offenses without
    32  such individual being given an opportunity to submit an  explanation  of
    33  the  facts  surrounding any conviction or alleged offense as well as any
    34  other information the individual deems relevant  to  the  conviction  or
    35  alleged  offense  and  provided  a  reasonable review of the facts and a
    36  reasonable consideration for the extension of forgiveness and  a  second
    37  chance.
    38    §  9.  This  act  shall take effect on the sixtieth day after it shall
    39  have become a law.
Enacts the "second chance act"

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