Overcoming Employment Barriers for People with - PowerPoint Presentation

Overcoming Employment Barriers for People with Criminal Records March 28, 2019 Monica Welby, Esq.Deputy Director of Litigationwww.lac.org © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

This Training is for . . . Is for health and social service providers working with individuals living with HIV who have criminal records and are seeking employment or working.Explains how New Yorkers with criminal records can improve their chances of finding employment.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

The Legal Action Center Non-profit policy and law organization Anti-discrimination and privacy for clients with:Criminal RecordsSubstance Use DisordersHIV/AIDS Legal services, litigation, policy advocacy, technical assistance, training © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

How to Get Help? Website has many resources! www.lac.org Free publications, free webinars and more Call with questions about privacy or discrimination relating to criminal records, HIV/AIDS, and/or substance use disorders: (212) 243-1313Clients: ask for “paralegal on call” (9 a.m. to 5 p.m.) Providers: ask for “attorney on call” (1 p.m. to 5 p.m.) Refer clients © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Before we get started . . . Poll 1: Do you work with individuals who have had interactions with the criminal justice system?YesNoPoll 2: Do you work with individuals living with HIV/AIDS who are seeking employment?1. Yes2. No© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Today’s Presentation FrameworkCriminal RecordsLaws Protecting Individuals with Criminal RecordsEvidence of Rehabilitation© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Today’s Materials Legal Action Center Materials:Your New York State RAP Sheet (booklet)Criminal Records and Employment (website) (to be updated soon to include ban the box laws)Lowering Criminal Records Barriers (website) How to Gather Evidence of Rehabilitation (pamphlet)Protect Yourself! Learn Your Rights! (pamphlet)Voting and Criminal Records (pamphlet)Sealing Old New York Convictions (pamphlet)Are You Somebody with … (booklet) Certificates of Relief and Good Conduct: What You Should Know (Part 1) (short video)Certificates of Relief and Good Conduct: What You Should Know (Part 2) (short video) © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Framework Part I© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Framework Number of people with criminal records is staggering based on decades of mass arrest and incarceration policies. Approximately 70 million adults (1 in 3) in the United States has some sort of criminal record. Jo Craven McGinty, How Many Americans Have a Police Record? Probably More Than You Think, Wall St. J., Aug. 7, 2015. Over 11 million people cycle through our country’s jails every year. Federal Interagency Reentry Council, National Reentry Week Fact Sheet 1 (2016), https://csgjusticecenter.org/wp-content/uploads/2016/04/FIRC-Fact-Sheet_4.25.16_CSG.pdf.Over 600,000 individuals return home from state and federal prison each year. Id. United States houses about the same number of individuals with criminal records as 4-year college graduates. Matthew Friedman, Brennan Center for Justice, Just Facts: As Many Americans Have Criminal Records as College Diplomas (Nov. 17, 2015), https://www.brennancenter.org/blog/just-facts-many-americans-have-criminal-records-college-diplomas. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Framework Some of the hurdles that people with criminal records face:Pervasiveness of Criminal Background Checks – For a number of reasons, including advancements in technology and the post 9/11 reaction to terrorism, most employers and occupational licensing agencies conduct criminal background checks on prospective employees.According to a 2012 survey conducted by the Society for Human Resources Management, almost 90% of employers run background checks on all or some of their job candidates. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Framework Criminal Record Inaccuracy – Criminal background reports often are inaccurate. According to a 2013 Legal Action Center report, RAP sheets of at least 2.1 million New Yorkers have errors. Legal Action Center, The Problem of RAP Sheet Errors: An Analysis By the Legal Action Center 1 (2013).According to a report issued by NELP, “one in two FBI records is flawed, penalizing the job search of more than half a million workers a year.” Madeline Neighly & Maurice Emsellem, NELP, Wanted Accurate FBI Background Checks for Employment 9 (July 2013)Commercial background reports that employers rely on are also notoriously inaccurate. National Consumer Law Center, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (April 2012)Criminal Record Barriers Created by Law – Range of laws and rules that create barriers to employment, occupational licensure and housing.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Framework Social implications are significant, especially for people of color. Once someone is branded with a criminal record, the challenges of finding employment, housing, and other of life’s necessities become infinitely greater. NYC Study: “[C]riminal record reduces the likelihood of a callback or job offer by nearly 50 percent (28 vs. 15 percent).” “[T]he negative effect of a criminal conviction is substantially larger for blacks than for whites. . . . [T]he magnitude of the criminal record penalty suffered by black applicants (60 percent) is roughly double the size of the penalty for whites with a record (30 percent).”[Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, Annals of the American Academy, 195, 199 (May 2009).] © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Framework Federal, state, and local laws that protect individuals with criminal records from unfair or discriminatory practices in the employment context, including laws governing the commercial background check industry.Ban-the-Box movement has gained momentum and will continue to grow. Job applicants, employees, social service providers, employers, and lawyers must be cognizant of the applicable laws and the changing landscape in this field. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

CRIMINAL RECORDS Part II© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsTerms and Definitions Crime: felony or misdemeanorFelony Class A (AI or AII), B, C, D,EMisdemeanors Class A, B, U © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsTerms and Definitions Violations: non-criminal offense punishable by a sentence of not more than 15 days in jail. that can be charged in the form of a summons (or desk appearance ticket – DAT) or an arrestTraffic infractions: not crimes, and are defined under Vehicle & Traffic Law. typically charged in the form of a summons and not requiring an arrest. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsTerms and Definitions Non-Conviction Outcomes DismissalAcquittalDecline to ProsecuteJuvenile Delinquent (JD) AdjudicationsChildren 7-17 (On October 1, 2019, 7-18) years old tried in family court (except if they are charged with certain violent felonies) Finding of guilt is called an adjudication not a conviction and information should not be publicly available Youthful Offender (YO) AdjudicationsIndividuals between 16-18 who are found guilty of a crime (as well as those under 16 who are tried as an adult may be given YO status by a judge)YO status is an adjudication, not a conviction and information about the case is confidential© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsSources Two Questions:Where is one’s criminal record history located?ANDWho maintains it? © 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsSources A NYS Division of Criminal Justice Services (DCJS) RAP Sheet is:officialfingerprint based DCJS RAP sheets can ONLY be obtained by the individual or entities that have statutory authority to get them.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsSources FBI also maintains national RAP sheetsFingerprint-basedAccessible only by authorized agencies Information reported to DCJS automatically reported to FBIIf NYS RAP sheet has problems, likely that FBI RAP sheet will too© 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsSources A NYS Office of Court Administration (“OCA”) report is NOT a RAP sheet!OCA Report can be obtained by anyone for a $65 feeIt is not fingerprint-basedIt is a report of court records It includes information on summons casesIt should not include information about arrests that did not lead to prosecution, violations, or sealed criminal convictions.Note: As of April 1, 2014, OCA will no longer report criminal records that only include 1 misdemeanor when the conviction occurred more than 10 years ago. However, individuals are still required to report these convictions when asked about them on a job application.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Criminal RecordsSources Fingerprint BasedNYS Division of Criminal Justice Service (DCJS) FBI Non-Fingerprint BasedOffice of Court Administration (OCA) RecordsNo consent or authorization needed Commercial Background Reports prepared by consumer reporting agency (CRA) after written consent is obtained from prospective employee or employee© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Background Check Sources Where is a potential employer likely to get information from?© 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Background Check Sources Where do NYS and NYC government employers obtain criminal record information?If they have the authority to fingerprint applicants (e.g., OPWDD, DOH, etc.), the information comes from NYS DCJS and, if they have the authority, from the FBI. Not every agency has the authority to fingerprint applicants.Some agencies obtain information from OCA.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Background Check Sources Where do private employers typically get their information from?Commercial background check companies (e.g., SterlingBackCheck, HireRight, Accurate Background, etc.)NYS OCANYS Department of Corrections “inmate lookup”This is NOT an accurate source of criminal record informationSome private companies maintain their own databasesSome local law enforcement agencies sell information© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Background Check Sources Consumer Reporting Agencies (commercial background checks) often misreport criminal conviction information because they:Use unreliable sources of informationDo not consult more than one record database Use old information/Do not update informationDo not get enough identifying information, so report information about the wrong peopleCut and paste without checking their workMislabel information© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Background Check Sources How can clients learn what may appear on commercial background checks?There are 500+ consumer reporting agencies. Empower clients to obtain official RAP Sheet to know what’s on their record.If possible, one can obtain OCA report in advance to see what data will be available. ($65 fee) Free report via certain large consumer reporting agencies (e.g., Hire Right) http://www.hireright.com/Consumers-Applicants.aspx © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets Every person with a criminal history should obtain a copy of his/her most recent RAP sheet because:Many people DO NOT accurately remember their criminal record.So likely to provide incorrect information on job application. May be denied a job for lying. There may be mistakes on the RAP sheet that can be corrected.Check out LAC Publication: Your New York State Rap Sheet: A Guide to Getting Understanding & Correcting Your Criminal Record. Note: If an individual has a previous deportation, the person should consult an immigration attorney before obtaining his/her RAP Sheet.Also, if an individual has had criminal justice involvement, it might be wise for him/her to consult an immigration attorney about any potential consequences. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets DCJS RAP Sheets that employers see (those allowed to receive it by contract and law) are different than the RAP sheets provided to the individuals themselves. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets Employer RAP Sheets include less information. They DO NOT include:Cases that were terminated favorably and sealed (e.g., dismissals, declined to prosecute)Sealed convictions (e.g., sealed violation convictions) © 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets Hypo 1: Joe applies for a job. The potential employer asks him for a copy of his RAP sheet instead of permission to run a background check. Should he provide it? YesNo© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets Answer: #2, No. Individuals should not present their own RAP sheets to employers or landlords, even if asked. They may include sealed or otherwise confidential information. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets Our data shows more than 1/3 of NYS RAP sheets have apparent errors or information that could be sealed. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets 5 Typical RAP Sheet ErrorsMissing Dispositionsobtain Certificate of Disposition from the court of convictionArrest Reported When No Case Filedrequest Decline to Prosecute letter from the DA’s OfficeCases Terminated in One’s Favor Not Sealed inform clerk should be sealed pre-1991 file pro se motion to seal © 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

RAP Sheets Violation-Level Convictions Are Not Sealedinform clerk should be sealed pre-1991 file pro se motion to seal Warrants that Were (or Should Have Been) Vacated Still Appear on RAP SheetMakes it appear that client is “fleeing prosecution,” and/or has open caseThis MAY NOT be an error. There may be an open warrant indicating an unresolved case Client should call defense attorney on case.If an administrative error, may be able to request list of court appearances to show warrant was vacated.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing What does it mean if a case is sealed?© 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing In generalNYS law DOES NOT permit expungement of any conviction. In very few cases, the governor can issue a pardon. NYS law DOES NOT permit sealing of felonies or misdemeanors except in limited circumstances discussed. Rockefeller drug law reformProstitution-related convictionsConvictions sealed under N.Y. CPL § 160.59 (effective Oct. 7. 2017) © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Cases terminated in client’s favor (e.g., complete dismissals, decline to prosecute, acquittals) are sealed for most purposes. The court file is sealed too. NY C.P.L. § 160.50. There are exceptions. For example, law enforcement can see the cases when considering applications for employment or gun licenses. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Violation-level convictions are sealed “at the state level” and not at the court level, per C.P.L. § 160.55Information should not be released on most background checks in NY (except for law enforcement or federal jobs).Most employers are not allowed to ask about sealed violations and applicants do not have to disclose them. BUT court file is not sealed: fact of conviction is public record. Exceptions (cannot be sealed): (a) driving while ability impaired; (b) loitering in a sexually deviant manner; (c) otherwise ordered by a judge; (d) subject to do not seal order © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Rockefeller drug law reform (2009) allows for conditional sealing of limited criminal convictions where the person was mandated to complete alcohol or drug treatment. C.P.L. § 160.58 If a case is conditionally sealed, it should not appear on RAP sheets requested by most employers. Most employers are not allowed to ask about conditionally sealed convictions.Sealing these records is not automatic and requires a motion. If someone thinks they might be eligible, they should contact their previous defense attorney or LAC.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Vacating Convictions Law (2010): Survivors of “sex trafficking” can vacate and seal resulting convictions related to prostitution. C.P.L. § 440.10(1)(i).In some cases, other convictions related to being trafficked may be sealed as well. A motion is required, and should be made by an experienced attorney. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing New Sealing Under NY C.P.L. § 160.59 (effective Oct. 7, 2017)People with criminal convictions in up to 2 cases (only 1 felony case) can apply to seal eligible cases after 10 years (not counting time in jail or prison). Other requirements apply. Follow up with our office for more information. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Youthful Offender (YO) adjudications (adjudications when client was between the ages of 16 and 18) should be confidential.If entered properly, YO information is kept confidential and will not be sent to most employers. Most employers are not allowed to ask about youthful offender adjudications.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Juvenile Delinquent (JD) is an adjudication when an individual was between the ages of 7-17 and the individual committed an act which would be considered a crime if committed by an adult. Should be automatically sealed.On October 1, 2018, when an individual is between the ages of 7-17On October 1, 2019, when an individual is between the ages of 7-18 Juvenile Offender (JO), however, is considered a criminal conviction and cannot be sealed . Youth between 13-15 years old who have committed a serious or violent felony, such as murder, rape, arson, etc. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Hypo 2: Which of the following should appear on a RAP sheet obtained by an employer (not law enforcement) with authority to fingerprint? “Paper” felony with a sentence of probation onlyMisdemeanorYouthful OffenderJuvenile OffenderAll 4“Paper” felony and misdemeanor “Paper” felony, misdemeanor, and juvenile offender© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Sealing Answer: #3, misdemeanor, ‘paper felony’ and juvenile offender should appear. MYTHS: Many people refer to felonies that didn’t result in prison terms as “paper felonies” and think that these won’t show up on a background check or don’t need to be reported. Many people think that misdemeanors and juvenile offender adjudications are not criminal convictions. REALITY: It makes no difference what the sentence was. Unsealed criminal convictions, both misdemeanors, felonies and juvenile offender adjudications, are reported. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

BREAK TIME Let’s take a 5 minute break!We’ll start with Laws Protecting People Against Criminal Record Discrimination when we resume.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

LAWS PROTECTING PEOPLE AGAINST CRIMINAL RECORD DISCRIMINATION Part III© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Overview Are there any laws that help protect job applicants and employees who have criminal records? YES!!! © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Overview Laws Protecting Individuals with Criminal Records in the Employment Context:New York State, New York City, and federal laws protecting against discriminationList of Ban the Box Laws in New YorkSummarize key points of NYC Fair Chance ActFair Credit Reporting Acts and employer responsibilities under the acts © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws Pursuant to NYS Human Rights Law and NYC Human Rights Law, it is unlawful discriminatory practice (unless specifically required or permitted by statute) for most employers to:ask about arrests that did not lead to conviction ask about youthful offender adjudicationsask about sealed violation convictionsask about convictions sealed under Rockefeller Drug Law Reform and sealed under the Vacating Convictions Law ask about convictions sealed under N.Y. CPL § 160.59 (effective Oct. 7, 2017) Except for federal government or law enforcement positions or others not covered by NYS law. N.Y. Exec. Law § 296(16); N.Y.C. Admin. Code § 8-107(11) . Also, unlawful discriminatory practice to act adversely against an individual based on list noted above in connection with licensing, employment, or providing credit or insurance to such individual. Id. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws Pursuant to NYS Human Rights Law and NYC Human Rights Law, it is unlawful discriminatory practice to deny employment to an individual based on his or her criminal convictions when such denial is in violation of Article 23-A. N.Y. Exec. Law § 296(15); N.Y.C. Admin. Code § 8-107(10). Article 23-A found in N.Y. Correction Law §§ 750-755.Describes employers’ rights and responsibilities for evaluating people with criminal convictions.Law applies to most public or private employers and job or licensure applications. Except:Applications for ‘membership’ in law enforcement agencies; When there is a mandatory forfeiture, disability or bar to employment imposed by law. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws Pursuant to section 752 of New York Correction Law, an applicant or current employee may not be denied job or license or acted adversely upon because of conviction records unless: There’s a direct relationship between conviction and job or license sought, orHiring or licensure would create an unreasonable risk to property or public or individual safety. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws 8 factors an employer must consider when evaluating conviction history: Public policy of NYS encourages licensure & employment of people with criminal records;Specific duties & responsibilities related to the license or employment;Bearing of the criminal offense on person’s fitness or ability to perform duties; Time elapsed since the criminal offense; Person’s age at the time of the criminal offense; Seriousness of the offense(s); Any information produced by applicant to show rehabilitation ; and 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. NOTE: Certificates of Relief from Disabilities or Certificates of Good Conduct create a presumption of rehabilitation. N.Y. Correct. Law § 753(2) © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws Under New York law, most employers are required to make an individual assessment of each job applicant with a criminal record, considering more than the criminal record itself.Because of individual assessment requirement under New York law, employers should not have flat ban policies—“We don’t hire people with felonies”“We don’t hire people with criminal records” “We don’t hire people with that type of conviction” © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws Aiding and Abetting Criminal Discrimination:It is “unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any acts forbidden” under NYS and NYC Human Rights law, “or to attempt to do so.” N.Y. Exec. Law § 296(6); N.Y.C. Admin. Code § 8-107(10)(a).© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYS Correction Law § 754 If an individual with a criminal conviction history is denied employment or license, can an inquiry be made as to the reason?Yes. If a person previously convicted of one or more criminal offenses is denied a license or employment, s/he can request that a public agency or private employer provide, within 30 days of request, a written statement of the reasons for denial. NY Anti-Discrimination Laws© 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Anti-Discrimination Laws NYS Negligent Hiring Law: Where an employer hires an employee after reviewing his or her conviction history using the factors required by Article 23-A (NYS Correction Law), if there is later a negligent hiring lawsuit involving that employee, a rebuttable presumption exists in favor of excluding evidence of applicant’s criminal conviction or incarceration history. N.Y. Exec. Law § 296(15).NYS Employer Education Act (2008): Requires employers and potential employers to provide a copy of Article 23-A to applicants when the commercial background check contains criminal conviction information, N.Y. Gen. Bus. Law § 380-g(d), and requires prominent posting of Article 23-A in various places of employment, N.Y. Labor Law § 201-f.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Title VII No specific employment anti-discrimination protections under federal law for people with criminal records, but . . . Updated EEOC Guidance (April 2012): An employer may violate Title VII of the Civil Rights Act of 1964 and discriminate based on a Title VII-protected group, such as race and national origin, by considering arrest or conviction records too heavily when deciding whether to hire or retain employees. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Potential Remedies General Information, Please Consult a Lawyer About Potential Remedies and SOLInformal Resolution/NegotiationORPublic EmployerFile an Article 78 petition in state court within 4 months of the illegal employment activity.Private Employer File A Complaint/Charge with an Administrative Agency NY State Division of Human Rights 1 year Statute of Limitation (SOL) – Complaint should be filed within one year after the alleged unlawful discriminatory practice NYC Commission on Human Rights1 year SOL - Complaint should be filed within one year of the last alleged act of discrimination or violationDeals with NYC Fair Chance Act violations (cannot bring those claims in NYS Division of Human Rights or EEOC)© 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Potential Remedies EEOC300 days from the day the discrimination took placeThere are nuances relating to an EEOC claimORFile a Lawsuit Directly Asserting NYS/NYC anti-discrimination claims already discussed - 3 year SOLNote: Can only assert Title VII claim (federal claim) if you go through administrative process © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

BAN THE BOX © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Ban the Box 11 states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont) have removed the conviction history question from job applications for private employers.A total of 31 states have adopted a statewide policy for public employers. Over 150 cities and counties have adopted some form of “ban the box” so that employers consider a job candidate’s qualifications first, without the stigma of a criminal record. Beth Avery & Phil Hernandez, NELP, Ban the Box Guide 1-5 (Sept. 2018), https://s27147.pcdn.co/wp-content/uploads/Ban-the-Box-Fair-Chance-State-and-Local-Guide-September.pdf © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Ban the Box Governor Cuomo issued “Fair Chance Hiring” requirement for New York State Agencies in 2015:Applicants for competitive positions with NYS agencies will not be required to discuss or disclose information about prior convictions until and unless the agency has interviewed the candidate and is interested in hiring them. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY Ban the Box 13 Local Ban the Box Laws in New York(check for updates)Albany County Ithaca New York City Tompkins County WoodstockBuffalo Kingston Rochester Ulster County YonkersDutchess County Newburgh Syracuse Westchester County Check NELP Guide for Updates. Beth Avery & Phil Hernandez, NELP, Ban the Box Guide 4 (Sept. 2018), https://s27147.pcdn.co/wp-content/uploads/Ban-the-Box-Fair-Chance-State-and-Local-Guide-September.pdf© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act Effective October 27, 2015Before a conditional offer of employment is made, most employers, employment agencies and agents of employer are prohibited from asking questions about an applicant’s criminal conviction or pending arrest. N.Y.C. Admin. Code § 8-107(11-a)(a). Job postings should not reference arrest or conviction histories. For example, phrases like, “no felonies” or “must have clean record” cannot be used.Application forms cannot authorize criminal background checks prior to conditional offer. After a conditional offer, an employer, employment agency, or agent can ask applicants if they have criminal convictions or pending cases, ask about the circumstances leading to the conviction and/or run a background check. N.Y.C. Admin. Code § 8-107(11-a)(b). © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act If the employer decides to hire applicant, the NYC Fair Chance Act does not require any other steps.If the employer is considering withdrawing its conditional offer based on the criminal conviction, it must: Gather and/or request all information needed in order to consider each factor, including evidence of rehabilitation.Consider the Article 23-A factors based on the job duties. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act After considering the Article 23-A factors if the employer, employment agency, or agent still would like to withdraw the offer, then employer must provide the applicant with the:The NYC Commission on Human Rights’ “Fair Chance Notice” (or comparable form) explaining its decision (an Article 23-A analysis). Link to Commission Notice: http://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdfA copy of the criminal record check conducted by it or a vendor (e.g., internet search, background check, etc.); and Hold job open for at least 3 business days after providing applicant with the document noted above. N.Y.C. Admin. Code § 8-107(11-a)(b). © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act Commission’s FCA Notice© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act Limited Exceptions:The Act does not apply if any state, federal or local law requires an employer to check an applicant’s criminal background for employment or prohibits you from hiring people with certain criminal convictions. N.Y.C. Admin. Code § 8-107(11-a)(e). This includes rules or regulations promulgated by a “self-regulatory organization,” as defined in the Securities Exchange Act of 1934 Note: If there is discretion to hire an applicant with a criminal conviction, the Act must be followed.Applicants for some law enforcement agencies (e.g., police department, fire department, department of correction, the department of probation, division of youth and family services, etc.). N.Y.C. Admin. Code § 8-107(11-a)(f)(1). Positions listed on DCAS’s website upon determination that the position involves law enforcement, is susceptible to bribery or other corruption, or entails provision of services or safeguarding individuals vulnerable to abuse. N.Y.C. Admin. Code § 8-107(11-a)(f)(2). © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act Hypo 3: Joe has a felony conviction for robbery. He committed the offense when he was 21 years old. He is now 43. He has worked in retail for the past 7 years for a large reputable company. For the past 3 years, he has been a department manager. He applies for general manager position at Retail Company ABC in NYC. He completes an application, which does not have a question about criminal convictions. He is called in for an interview with a regional manager. During the interview, he is told that he is one of three candidates that they are interviewing. At the end of the interview, he is casually asked whether anything might pop up on his background check that he should be aware of? Joe discloses his felony conviction, and the regional manager responds by saying that he does not think that it will be an issue because it was so long ago. Two weeks later the regional manager calls him and says, “I really wanted to hire you, but the company’s central office does not onboard folks with the type of conviction you have to management positions. I am really sorry I wanted you on my team. You’ll be getting a letter in the mail, but I wanted to call you personally. Best of luck.” Were Joe’s rights violated? No.Yes, the NYC Fair Chance Act (ban the box law)Yes, the NYC Fair Chance Act, Article 23-A, and NYS and NYC anti-discrimination laws.Let’s discuss© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NYC Fair Chance Act Answer: #3, Yes, the NYC Fair Chance Act, Article 23-A, and NYS and NYC anti-discrimination laws. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FAIR CREDIT REPORTING ACT (FCRA) © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Federal and State laws exist that cover contents and use of background checks.Federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Many states have their own fair credit reporting laws regulating the collection and dissemination of information, including criminal record information, in the employment process. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY FCRA HIGHLIGHTS Under NY FCRA, what criminal record information can be included in a commercial background report?Cannot include information about arrests that did not result in criminal convictions, so cannot include violations (whether sealed or unsealed). N.Y. Gen. Bus. Law § 380-j(a)(1).Can include information about unsealed criminal convictions (but not violations) no matter how old UNLESS:Position pays less than $25K per year. Then 7 year limit after the date of disposition, release or parole. N.Y. Gen. Bus. Law § 380-j(f)(1)(v); N.Y. Gen. Bus. Law § 380-j(f)(2)(iii).BUT there is no law preventing the employer from asking about convictions before that time. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

NY FCRA HIGHLIGHTS NY FCRA requires employers and potential employers to provide a copy of Article 23-A to applicants when the commercial background check contains criminal conviction information. N.Y. Gen. Bus. Law § 380-g(d).© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Highlights of some responsibilities employers have under federal FCRA:Employer may only get and use background report for “employment purposes,” including hiring, promotion, reassignment, and retention. 15 U.S.C. § 1681b(a)(3)(B); 15 U.S.C. § 1681a(h). Must get applicant’s permission in writing before ordering a background check and must provide stand-alone disclosure that background check may be performed for employment purposes. 15 U.S.C. § 1681b(b)(2)(A). © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Pre-Adverse Action Notice. If the employer plans to “take adverse action” based at least in part on the report, employer must give applicant, a copy of the background report and a copy of the Federal Trade Commission’s “Summary of Consumer Rights”, before taking adverse action. 15 U.S.C. § 1681b(b)(3)(A).How far in advance of actually taking the “adverse action” must an employer send out the background check? No set time under FCRA, but sending out report and denial at same time does not comply with the law © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Adverse Action Notice. Employers must give the job candidate notice (verbal, written, or electronically) if they take adverse action based on information in the report. The notice must include: name, address, and phone number of consumer reporting agency;a statement that the company that supplied the report did not make the decision to take the adverse action and cannot provide specific reasons for the decision; and a notice of the candidate’s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days. 15 U.S.C. § 1681m(a).© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Mindful that consumer reporting agencies often misreport criminal conviction information because they:Use unreliable sources of information Do not consult more than one record databaseUse old information/Do not update informationDo not get enough identification information, so report information about the wrong peopleCut and paste without checking their workMislabel information © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA What if the report includes mistakes?Applicant has the right to dispute error with the consumer reporting agency and consumer reporting agency is required to investigate error© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Hypo 4: Marla applies for a job and signs a written consent for a background check. Potential employer later calls her and says, “We just received the report and see you were convicted of drug possession, is that true?” It is true, and Marla says so. She is then denied the job. Were her rights violated under FCRA?Yes.No.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

FCRA Answer: # 1, Yes, Marla’s rights were violated. Marla did not receive written pre-adverse action notice days before being denied the job based on her background check. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

EVIDENCE OF REHABILITATION Part IV© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Evidence of Rehabilitation How to Show It? What can people do to improve their chances of getting a job even with a criminal record? Collect evidence showing positive changes since offense(s). Also called “evidence of rehabilitation.”Apply for Certificate(s) of Relief from Disabilities (CRD) or a Certificate of Good Conduct (CGC). © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Evidence of Rehabilitation How to Show It? Forms of evidence of rehabilitationEducation – school or training programs Jobs or volunteer work Programs, e.g. drug treatment or anger management  Sensitive information, so consider if want to share it. Certificates of Relief or of Good Conduct (will discuss later). © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Evidence of Rehabilitation How to Show It? Forms of evidence of rehabilitation (continued)Simply reporting it.Documentation – certificate, diploma, etc. Recommendation letters – from jobs, school or training, service providers or personal contactsSee “How to Gather Evidence of Rehabilitation” at http://lac.org/wpcontent/uploads/2016/07/EvidenceRehabilitation_EN.pdf© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Evidence of Rehabilitation How to Show It? Collect evidence of rehabilitation in advance of applications because may need it on short notice. Show skills, ability, character changes.If possible, letters should say writer knows about conviction(s) and trusts you anyway. Both quantity and quality count.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificates Certificates of Relief from Disabilities or Good Conduct Provide:Evidence of rehabilitationRemove automatic bars to employment or occupational licensesSeveral occupational licenses issued by NYS (e.g., security guard, real estate broker, etc.) that require a CRD/CGC if the applicant has certain specified convictions. CRD or CGC can lift the automatic bar. But conviction(s) can still be considered and asked aboutBoth certificates lift the same employment or housing bars EXCEPT only Certificate of Good Conduct lifts bars to “public office”NOTE: Not all public office positions have a bar!Right to vote: Restore right to vote (for person currently on parole – if not in prison or on parole, you have the right to vote). Note: Please see handout because most people with criminal records in NY can vote. If on parole or post release supervision and individual received a voting restoration pardon – which almost everyone on parole has recently gotten or will soon get – then person can register to vote. Check the parolee lookup website Note: Prior to applying, one should consult an immigration attorney if his/her criminal record may make him/her deportable of there is another immigration concern. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificates General Information About CertificatesOut of state or federal convictions are eligible for Certificates (where one resides may inform which certificate to apply for). Certificates of Rehabilitation are generally recognized only by NYS. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificate of Relief from Disabilities Eligibility for a Certificate of Relief from Civil Disabilities (CRD):Felony conviction on no more than 1 date.Any number of misdemeanors.Certificate only applies to conviction for which it was granted. So may need more than one certificate.No waiting period before applying. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificate of Relief from Disabilities To apply for a Certificate of Relief from Disabilities:Apply to court of conviction if never went to state prison. Can request at sentencing or anytime after. Apply to DOCCS if prison time was served or if applying for out of state or federal conviction.Can apply after release, even if still on parole.© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificate of Good Conduct Eligibility for a Certificate of Good Conduct (CGC):Two or more felony convictions (if convictions were on different dates)ORApplying for a “public office” with a conviction bar (or other application that specifically requires CGC)One CGC covers entire conviction history!Note: The “Certificate of Conduct” (formerly known as “Good Conduct Certificate”) issued by the NYPD does not remove statutory bars or create a presumption of rehabilitation. It is simply a criminal history search within New York City and costs $50.00. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificate of Good Conduct Eligibility for a Certificate of Good Conduct:Waiting periods before eligible to apply:Class A or B felonies – 5 yearsClass C, D or E felonies – 3 years Misdemeanors – 1 year© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

Certificate of Good Conduct To Apply for a CGC:After required waiting period of three or five years has passed, download application at:http://www.doccs.ny.gov/pdf/DOCCS-CRD-Application_Instructions.pdf ; or call Certificate Review Unit at (518) 485-8953 and ask for application.Complete form and return to the Certificate Review Unit. If employed during last two years, proof of paid income taxes must be provided. © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

© 2019, Legal Action Center │ This document is informational and does not constitute legal advice.

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This concludes the presentation. Thank you to the AIDS Institute, New York State Department of Health!!!Please complete the evaluation!Register with the AIDS Institute to get credit for your attendance: http://www.hivtrainingny.org/ © 2019, Legal Action Center │ This document is informational and does not constitute legal advice.