OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS LEGAL ACTION CENTER 2013 1 WHO’S THE LEGAL ACTION CENTER? People with criminal records, alcohol/drug histories, and/or HIV/AIDS Legal services & litigation Advice to providers Trainings Policy advocacy & research Legal Action Center - May 7, 2013 ANTI-DISCRIMINTATION & PRIVACY WORK: 2 FREE LEGAL SERVICES Including – Discrimination based on: HIV status Alcohol/drug history Criminal record – • Job & Housing Discrimination Criminal Records – RAP sheet review and error correction Certificates of Relief and Good Conduct Legal Action Center - May 7, 2013 HIV testing & confidentiality 3 HAVE QUESTIONS? Call the Legal Action Center • Toll-Free: (800) 223-4044 Clients: ask for “paralegal on call” • 9 a.m. – 5 p.m. Legal Action Center - May 7, 2013 • 212-243-1313 Providers: ask for “attorney on call” • 1 p.m. – 5 p.m. 4 Is for health and social service providers working with HIV-positive individuals who have criminal records – especially those seeking employment and housing. Explains how New Yorkers with criminal records can improve their chances of finding employment and housing despite the barriers having a criminal record might pose. Legal Action Center - May 7, 2013 THIS TRAINING . . . 5 TODAY’S AGENDA Part One – Criminal Record History • Background check sources • RAP sheets, including errors and corrections, sealing • Issues related to criminal background checks Part Two – Evidence of Rehabilitation • How to show it • Certificates of Relief from Disabilities • Certificates of Good Conduct Legal Action Center - May 7, 2013 Today’s training has 4 Parts: 6 TODAY’S AGENDA (CONT.) Part Three – Criminal-Records Based Employment Discrimination • Fair Credit Reporting Acts and employer responsibilities under the acts • Federal, NY State, and NYC laws protecting against discrimination • Other NY laws of interest Legal Action Center - May 7, 2013 Today’s training has 4 Parts (cont.): 7 TODAY’S AGENDA (CONT.) Today’s training has 4 Parts (cont.): • Background checks and FCRA • NYCHA & Section 8 Housing o Section 8 is now called Housing Choice. Today’s presentation will use the term Section 8. • Other government funded housing (brief) • Fair Housing Act (brief) Legal Action Center - May 7, 2013 Part Four – Housing 8 TODAY’S MATERIALS LAC Booklets: Your New York State RAP Sheet Lowering Criminal Records Barriers (updated version on our web site, www.lac.org) Changes to the Rockefeller Drug Laws Article 23-A of the NYS Correction Law How to Gather Evidence of Rehabilitation Video: Your Rights, Your Future: Preparing for Reentry: http://vimeo.com/14365413 Legal Action Center - May 7, 2013 Criminal Records and Employment 9 PART ONE Legal Action Center - May 7, 2013 CRIMINAL RECORD HISTORY (“CRH”) 10 CRH: CRIMINAL RECORDS The Legal Action Center . . . Collateral consequences; and Legal Action Center - May 7, 2013 Fingerprints eligible clients; Certificates of Rehabilitation 11 Provides a workshop about: Understanding criminal history info; CRH: CRIMINAL RECORDS (CONT.) Legal Action Center also . . . Summarizes RAP sheet; and May answer questions and help correct errors on the RAP sheet Legal Action Center - May 7, 2013 Provides the client with a RAP sheet; 12 CRH: WHERE IS IT? WHO MAINTAINS IT? 1. Where is one’s criminal record history located? AND 2. Who maintains it? Legal Action Center - May 7, 2013 Two Questions: 13 CRH: WHERE IS IT? WHO MAINTAINS IT? (CONT.) In New York State . . . • Official “RAP” Sheet 2. Office of Court Administration (“OCA”) • OCA Record Legal Action Center - May 7, 2013 1. Division of Criminal Justice Services (“DCJS”) 14 DCJS RAP sheet can ONLY be obtained by the individual or by entities that have statutory authority to get them OCA report can be obtained by ANYONE, for a fee ($65) Legal Action Center - May 7, 2013 CRH: WHERE IS IT? WHO MAINTAINS IT? (CONT.) 15 CRH: WHERE IS IT? WHO MAINTAINS IT? (CONT.) A NYS DCJS RAP Sheet is: fingerprint based One must have statutory authority to obtain a RAP sheet. Legal Action Center - May 7, 2013 official 16 CRH: WHERE IS IT? WHO MAINTAINS IT? (CONT.) An OCA report is NOT a RAP sheet! It is a report of court records It includes information on summons cases It should not include information about arrests that did not lead to prosecution Legal Action Center - May 7, 2013 It is not fingerprint-based 17 CRH: WHERE IS IT? WHO MAINTAINS IT? (CONT.) FBI also maintains national RAP sheets Accessible only by authorized agencies Information reported to DCJS automatically reported to FBI If NYS RAP sheet has problems, likely that FBI RAP sheet will too Legal Action Center - May 7, 2013 Fingerprint-based 18 CRH: BACKGROUND CHECK SOURCES – EMPLOYERS Legal Action Center - May 7, 2013 Where is a potential employer likely to get information from? 19 CRH: BACKGROUND CHECK SOURCES – EMPLOYERS (CONT.) 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. Legal Action Center - May 7, 2013 Where do NYS and NYC government employers obtain criminal record information? 20 CRH: BACKGROUND CHECK SOURCES – EMPLOYERS (CONT.) Where do private employers typically get their information from? NYS OCA NYS Department of Corrections “inmate lookup” This is NOT an accurate source of criminal record information Legal Action Center - May 7, 2013 Commercial background check companies Some private companies maintain their own databases 21 Some local law enforcement agencies sell information CRH: BACKGROUND CHECK SOURCES – HOUSING Landlords may get their information from: Commercial background check companies NYS Department of Corrections “inmate lookup” This is NOT an accurate source of criminal record information Legal Action Center - May 7, 2013 NYS OCA 22 CRH: RAP SHEETS Many people DO NOT accurately remember their criminal record; and/or • If they don’t remember, more likely to inadvertently provide incorrect information on job or housing application. They may be denied a job or housing for lying. There may be MISTAKES on the RAP sheet that can be corrected. Legal Action Center - May 7, 2013 Every person with a criminal history should obtain a copy of his/her most recent RAP sheet because: 23 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. Legal Action Center - May 7, 2013 CRH: RAP SHEETS (CONT.) 24 CRH: RAP SHEETS (CONT.) Sealed and confidential information, including : Cases that were terminated favorably and sealed (e.g., complete dismissals, ACDs, etc.) Sealed violation-level convictions The very few other convictions that can be sealed by application under Rocky or Sex Trafficking Youthful offender adjudications Juvenile delinquencies Legal Action Center - May 7, 2013 Most employer RAP Sheets include less information. They SHOULD NOT include: 25 Legal Action Center - May 7, 2013 POLL #1 26 CRH: RAP SHEETS (CONT.) • 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? a. Yes b. No Legal Action Center - May 7, 2013 POLL: 27 CRH: RAP SHEETS (CONT.) b. No. Individuals should not present their own RAP sheets to employers or landlords, even if asked. They may include sealed or otherwise confidential information. Legal Action Center - May 7, 2013 ANSWER: 28 Our data shows almost HALF of RAP sheets have apparent errors or information that could be sealed. Legal Action Center - May 7, 2013 CRH: RAP SHEET ERRORS & CORRECTIONS 29 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) What can be done to correct them? Legal Action Center - May 7, 2013 What types of errors occur on RAP sheets? 30 Let’s talk about 5 typical RAP sheet errors and what can be done about them. Legal Action Center - May 7, 2013 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) 31 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) May appear that a client has an open case when s/he does not. Client can seek documentation from court showing outcome of the case and send it to DCJS. • If court has no documentation, see next error, below. Legal Action Center - May 7, 2013 1. Missing Disposition – Entry shows a case was filed but no resolution. 32 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) May appear as if client has an open case & shows arrest charges that otherwise would not be reported to most employers. Client can request a letter from the DA’s office stating that they declined to prosecute. If DA’s office says that they never got case from the police, contact LAC. Legal Action Center - May 7, 2013 2. Arrest reported even when no case was filed – Although police or DA decided not to pursue case, record of arrest appears on RAP Sheet. 33 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) Case is reported (including arrest charges) that usually should not appear Client can see if court records indicate case should already be sealed. If not, can try to file motion to seal. Legal Action Center - May 7, 2013 3. Cases Terminated in Client’s Favor Are Not Sealed 34 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) Case is reported (including arrest charges) that usually should not appear. Client can see if court records indicate case should already be sealed. If not, can try to file motion to seal. Legal Action Center - May 7, 2013 4. Violation-Level Convictions Are Not Sealed 35 CRH: RAP SHEET ERRORS & CORRECTIONS (CONT.) Makes it appear that client is “fleeing prosecution,” and/or has open case • This 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. Legal Action Center - May 7, 2013 5. Warrants that Were (or Should Have Been) Vacated Still Appear on RAP Sheet 36 CRH: RAP SHEETS – SEALING Legal Action Center - May 7, 2013 What does it mean if a case is sealed? 37 Cases terminated in client’s favor (complete dismissals) are sealed for most purposes. The court file is sealed too. CPL § 160.50. There are exceptions. For example, law enforcement can see the cases when considering applications for employment or gun licenses. Legal Action Center - May 7, 2013 CRH: RAP SHEETS – SEALING (CONT.) 38 CRH: RAP SHEETS – SEALING (CONT.) Information 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. NYCHA gets info about sealed violations and some arrests. Landlords can ask about sealed violations and arrests (more later). Legal Action Center - May 7, 2013 Violation-level convictions are sealed “at the state level” and not at the court level, per C.P.L. § 160.55 39 CRH: RAP SHEETS – SEALING (CONT.) 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. Legal Action Center - May 7, 2013 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 someone thinks they might be eligible, they should contact their previous defense attorney or LAC. 40 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. Legal Action Center - May 7, 2013 CRH: RAP SHEETS – SEALING (CONT.) 41 CRH: RAP SHEETS – SEALING (CONT.) 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. Legal Action Center - May 7, 2013 Youthful Offender (“YO”) adjudications (adjudications when client was between the ages of 16 and 18) should be confidential. 42 CRH: RAP SHEETS – SEALING (CONT.) • In very few cases, the governor can issue a pardon. NYS law DOES NOT permit sealing of felonies or misdemeanors except in the very limited circumstances discussed. • Rockefeller drug law reform • prostitution-related convictions. Legal Action Center - May 7, 2013 In general NYS law DOES NOT permit expungement of any conviction. 43 Legal Action Center - May 7, 2013 POLL #2 44 CRH: RAP SHEETS – SEALING (CONT.) A private employer runs a background check on an applicant. Which of the following should appear? • • • “Paper” felony with a sentence of probation only; Misdemeanor Youthful offender adjudication. Legal Action Center - May 7, 2013 POLL: 45 CRH: RAP SHEETS – SEALING (CONT.) A. None should appear. B. Only the felony should appear. C. Only the misdemeanor should appear. D. “Paper” felony and misdemeanor should appear. Legal Action Center - May 7, 2013 Possible answers: 46 CRH: RAP SHEETS – SEALING (CONT.) D. Misdemeanor and ‘paper felony’ 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. • OR think that misdemeanors won’t be reported. Legal Action Center - May 7, 2013 ANSWER: REALITY: • It makes no difference what the sentence was. Unsealed criminal convictions, both misdemeanors and felonies, are reported. 47 CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF MATTER At least 80% of large private employers conduct background checks on prospective employees, frequently outsourcing this work. Many federal and state government agencies require background checks. Legal Action Center - May 7, 2013 Advances in technology have created easy access to criminal records. 48 CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF PROBLEM Credit Reporting Agencies often misreport criminal conviction information because they: Do not consult more than one record database Use old information Do not get enough identification information, so report information about the wrong people Cut and paste without checking their work Mislabel information Legal Action Center - May 7, 2013 Use unreliable sources of information 49 CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF PROBLEM (CONT.) May be missing disposition May list cases that are sealed and/or dismissed Cases that could be sealed have not been May list bench warrants that have been vacated May contain other mistakes Legal Action Center - May 7, 2013 REMEMBER – official criminal records also may have mistakes or too much info, such as: 50 How can clients learn what may appear on commercial background checks? Legal Action Center - May 7, 2013 CRH: PREPARING FOR COMMERCIAL BACKGROUND CHECKS 51 CRH: PREPARING FOR COMMERCIAL BACKGROUND CHECKS (CONT.) Free report via certain large consumer reporting agencies (e.g., Hire Right, which uses (we think) OCA-furnished info: http://www.hireright.com/Consumers-Applicants.aspx Remember that each consumer reporting agency may have different possible errors. Legal Action Center - May 7, 2013 If possible, get OCA report in advance to see what data will be available. ($65 fee) 52 PART TWO Legal Action Center - May 7, 2013 EVIDENCE OF REHABILITATION 53 We’ve discussed criminal records, where they are recorded, and what other people will learn about them… … NOW how to overcome barriers they create? 1. Collect evidence of rehabilitation. 2. Apply for a Certificate of Relief from Disabilities (“CRD”) or Certificate of Good Conduct (“CGC”). Legal Action Center – May 7, 2013 EVID. OF REHAB: HOW TO SHOW IT? 54 EVID. OF REHAB: HOW TO SHOW IT? What is evidence of rehabilitation and how do you show it? What is a Certificate of Relief from Disabilities (“CRD”) and Certificate of Good Conduct (“CGC”) and how can they help? Legal Action Center – May 7, 2013 We’ll Cover . . . 55 EVID. OF REHAB: HOW TO SHOW IT? (CONT.) Educational efforts – school or training programs Jobs or volunteer work Recommendation letters – from jobs, school or training, service providers or personal contacts Programs, eg drug treatment or anger management But this is obviously sensitive info, so depends on whether person wants to share it. Certificates of Relief or of Good Conduct (will discuss soon) create a presumption of rehabilitation. Legal Action Center – May 7, 2013 Evidence of rehabilitation can include almost any positive activities. 56 EVID. OF REHAB: HOW TO SHOW IT? (CONT.) Show skills, ability, character changes, and minimal risk to harm people or property. If possible, have letters from people who know about conviction and trust you anyway. Both quantity and quality count. Legal Action Center – May 7, 2013 Collect evidence of rehabilitation in advance of applications because may need it on short notice. 57 Certificates of Relief from Disability (CRDs) & Certificates of Good Conduct (CGCs) Legal Action Center - May 7, 2013 EVID. OF REHAB: CRDS & CGCS 58 EVID. OF REHAB: CRDS & CGCS Certificates of Relief or Good Conduct Provide: Remove automatic bars to employment or occupational licenses • But conviction can still be considered and asked about Law now amended so both CRDs & CGCs should lift basically all the same bars • Exception: Only CGC lifts the bar to “public office.” 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) Legal Action Center - May 7, 2013 Evidence of rehabilitation 59 EVID. OF REHAB: CRDS Eligibility for a CRD: Any number of misdemeanors. Certificate only applies to conviction for which it was granted. There is no waiting period before applying. Legal Action Center - May 7, 2013 Felony conviction on no more than 1 date 60 EVID. OF REHAB: CRDS (CONT.) Apply to court of conviction if never went to state prison. Can request at sentencing. Apply to parole if served prison time (even if never on parole). Can apply after release, even if still on parole. Legal Action Center - May 7, 2013 To Apply for a CRD: 61 EVID. OF REHAB: CGCS Eligibility for a CGC: If have fewer convictions, but need CGC instead of CRD, can still apply. One CGC covers entire conviction history Waiting periods before eligible to apply: • • • Class A or B felonies – 5 years Class C, D or E felonies – 3 years Misdemeanors – 1 year Legal Action Center - May 7, 2013 Two or more felony convictions (convictions were on different dates) 62 EVID. OF REHAB: CGCS (CONT.) To Apply for a CGC: • https://www.parole.state.ny.us/pdf/parolecert.pdf; or call and ask parole to send you an application at (518) 485-8953. Complete the form and return to Parole. If you have worked in the last three years, you must provide proof that you paid income taxes. Legal Action Center - May 7, 2013 Once the required waiting period of three years or five years has passed, download an application at : 63 EVID. OF REHAB: CGCS (CONT.) To Apply for a CGC: • https://www.parole.state.ny.us/pdf/parolecert.pdf; or call and ask parole to send you an application at (518) 485-8953. Complete the form and return to Parole. If you have worked in the last three years, you must provide proof that you paid income taxes. Legal Action Center - May 7, 2013 Once the required waiting period of three years or five years has passed, download an application at : 64 PART THREE Legal Action Center - May 7, 2013 CRIMINAL-RECORDS BASED EMPLOYMENT DISCRIMINATION 65 Are there any laws that help protect job applicants and employees who have criminal records? Legal Action Center - May 7, 2013 EMP. DISCRIM: LAWS? 66 EMP. DISCRIM: LAWS? (CONT.) YES!!! the fair credit reporting acts (“FCRAs”), including both the Federal Fair Credit Reporting Act (“Fed. FCRA”) and the NYS Fair Credit Reporting Act (“NYS FCRA”). There are laws that protect job seekers and employees from discrimination. NYS Correction and NYS & NYC Human Rights laws; Title VII of the federal Civil Rights Act. Legal Action Center - May 7, 2013 There are laws that cover contents and use of background checks. 67 EMP. DISCRIM: FCRAS Under NYS law, Can not include information about violations (sealed or unsealed). Can not include other sealed or confidential information (eg Youthful offender adjudications, JDs) Can include information about 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. • BUT there is no law preventing the employer from asking about convictions before that time. Legal Action Center - May 7, 2013 What criminal record information can be included in a commercial background report? 68 EMP. DISCRIM: FCRAS (CONT.) Applicant has the right to insist that the credit reporting agency: • Corrects the report AND • Sends the employer the corrected information. Legal Action Center - May 7, 2013 What if the report includes mistakes? 69 Let’s talk about 3 responsibilities of employers under both FCRAs (federal and state) Legal Action Center - May 7, 2013 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) 70 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) • Hiring • Promotion • Reassignment • Retention Legal Action Center - May 7, 2013 1. Employer may only get and use background report for “employment purposes,” including: 71 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) Legal Action Center - May 7, 2013 2. Must get applicant’s (or employee’s) permission in writing before ordering a background check. 72 3. If the employer plans to “take adverse action” based at least in part on the report, employer must give applicant (or employee), a copy of the background report, and a copy of the “Summary of Consumer Rights” published by the Federal Trade Commission (FTC), before taking adverse action. Legal Action Center - May 7, 2013 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) 73 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) What is an adverse action? • Denying the job • Terminating an employee • Deciding not to promote an employee • Demoting an employee • Reassigning an employee Legal Action Center - May 7, 2013 Includes: 74 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) No set time under the law, but courts and FTC have suggested at least five days. Sending out report and denial at same time does not comply with the law Legal Action Center - May 7, 2013 How far in advance of actually taking the “adverse action” must an employer send out the background check? 75 Legal Action Center - May 7, 2013 POLL #3 76 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) 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 petit larceny, is that true?” It is true, and Martha says so. She is then denied the job. Were her rights violated under FCRA? Legal Action Center - May 7, 2013 POLL: a. Yes b. No 77 EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.) 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. Legal Action Center - May 7, 2013 ANSWER: 78 1. Federal Law 2. New York State 3. New York City Legal Action Center - May 7, 2013 EMP. DISCRIM: LAWS PROTECTING AGAINST DISCRIM. 79 EMP. DISCRIM: FED. ANTI-DISCRIM. LAWS New April 2012 EEOC guidance: An employer may violate Title VII of the Civil Rights Act of 1963 and discriminate based on race and national origin by considering arrest or conviction records too heavily when deciding to whether hire or retain employees. Legal Action Center - May 7, 2013 No specific employment anti-discrimination protections under federal law for people with criminal records, but . . . 80 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS Corrections Law Article 23-A NYC Human Rights Law Negligent Hiring Law Employer Education Act Legal Action Center - May 7, 2013 NYS Human Rights Law 81 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) What is Correction Law Article 23-A? Describes employers’ rights and responsibilities for evaluating people with criminal record histories. Law applies to public or private employers, job or licensure applications, promotions, reassignments or retention. Legal Action Center - May 7, 2013 It’s NY Correction Law §§ 750-755 82 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) Legal Action Center - May 7, 2013 A violation of Article 23-A is a violation of NYS Human Rights Law and the NYC Human Rights Law (it’s an unlawful discriminatory practice). 83 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) It does not apply to the federal government or non-New York government employers, e.g., Port Authority. Legal Action Center - May 7, 2013 Article 23-A applies to public and private New York employers and licensing agencies. 84 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) 1. There’s a direct relationship between conviction and job or license sought, or 2. Hiring or licensure would create an unreasonable risk to property or public or individual safety. Legal Action Center - May 7, 2013 Applicant or current employee may not be denied job or license or acted adversely upon because of conviction records unless: 85 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) NYS Correction Law § 753 1. Public policy of NYS encourages licensure & employment of people with criminal records; 2. Specific duties & responsibilities related to the license or employment; 3. Bearing of the criminal offense on person’s fitness or ability to perform duties; Legal Action Center - May 7, 2013 8 factors an employer must consider when evaluating conviction history: 86 4. Time elapsed since the criminal offense; (Next Slide . . .) EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) NYS Correction Law § 753 5. 6. 7. 8. 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 employer in protecting property, and the safety and welfare of specific individuals or the general public. Legal Action Center - May 7, 2013 8 factors (cont.): NOTE: CRDs or CGCs create a presumption of rehabilitation 87 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) NYS & NYC Human Rights Laws Most employers . . . may not ask about arrests that did not lead to conviction may not ask about sealed violation convictions may not ask convictions sealed under Rockefeller Drug Reform and sealed under the Vacating Convictions Law EXCEPT for federal government or law enforcement positions. And applicants do not have to disclose any of the above to most New York employers, except for federal government or law enforcement positions. Legal Action Center - May 7, 2013 may not ask about youthful offender adjudications 88 Legal Action Center - May 7, 2013 POLL #4 89 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) An application asks, “Have you ever been convicted of any offense?” Is this a legal question? a. Yes b. No Legal Action Center - May 7, 2013 POLL: 90 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) b. No. Although the question only asks about convictions, it does not exclude sealed convictions. Legal Action Center - May 7, 2013 A NSWER: 91 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) How do these laws work in practice? “We don’t hire people with criminal records.” “We fire anyone who has a criminal record, even if we never asked about it before.” Legal Action Center - May 7, 2013 Employer may not have a flat policy— 92 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) Employer must evaluate each job applicant individually, considering more than the criminal record. Legal Action Center - May 7, 2013 Under New York law, what must an employer do when considering a job applicant with a criminal record? 93 EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.) 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. Legal Action Center - May 7, 2013 NYS Correction Law § 754 94 EMP. DISCRIM: OTHER NY LAWS 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 record or incarceration history. N.Y. Exec. Law § 296(15). Legal Action Center - May 7, 2013 NYS Negligent Hiring Law (2008) 95 EMP. DISCRIM: OTHER NY LAWS (CONT.) Requires employers and potential employers to include a copy of Article 23-A of the Correction Law (NYS anti-discrimination law, protecting job seekers with criminal records from unfair discrimination) when providing a consumer report containing criminal conviction information to a third party, and requires prominent posting of Article 23-A in various places of employment. Legal Action Center - May 7, 2013 NYS “Employer Education Act” (2008) 96 PART FOUR Legal Action Center - May 7, 2013 HOUSING 97 HOUSING: GENERALLY Legal Action Center - May 7, 2013 Is it legal to deny someone housing because of a criminal record? 98 HOUSING: GENERALLY (CONT.) Legal Action Center - May 7, 2013 There is NO federal or New York State law that expressly prohibits housing discrimination based on a criminal record. 99 HOUSING: BACKGROUND CHECKS They also must tell the housing applicant if they deny you housing because of the background check and give the applicant contact information for the background check company. Legal Action Center - May 7, 2013 All landlords (even those who do not get government funding) must tell an applicant if they are going to get his/her criminal background report through a background check company. 100 HOUSING: BACKGROUND CHECKS (CONT.) If there are mistakes in the background check, the applicant should send proof to the background check company and demand that it correct the report. The company must investigate, make corrections and tell the applicant the result. If a landlord and/or background check company does not follow these laws, the applicant may be able to file a complaint. Legal Action Center - May 7, 2013 The background check company must give an individual a free copy of the report if the applicant asks for it within 60 days of the housing denial. 101 HOUSING: NEW YORK CITY HOUSING AUTHORITY (“NYCHA”) Eligibility for Admission Has ever been convicted of manufacture or production of methamphetamine on the premises of federally assisted housing. Is subject to a lifetime sex offender registration requirement or for 60 months from the date a person is removed from a sex offender list. Legal Action Center - May 7, 2013 Federal law prohibits housing authorities from admitting people if any household member: 102 HOUSING: NYCHA (CONT.) “would adversely affect the health, safety, or welfare of other tenants.” Legal Action Center - May 7, 2013 Federal law gives local housing authorities the discretion to exclude people whose history of criminal activity . . . 103 As permitted by federal law, NYCHA’s own policies disqualify people who NYCHA believes threaten the health and safety of NYCHA residents and property. Legal Action Center - May 7, 2013 HOUSING: NYCHA (CONT.) 104 HOUSING: NYCHA (CONT.) Every proposed household member aged 16 or over Absent parents (unless they will be incarcerated for at least 10 years from date of ineligibility interview) Legal Action Center - May 7, 2013 Whose criminal record affects eligibility for public housing? 105 HOUSING: NYCHA (CONT.) Which conviction can potentially disqualify people from NYCHA? NYCHA “overlooks” some minor convictions. Most convictions potentially disqualify households for a certain number of years after completion of sentence: • Start counting after the end or parole or probation. • If either is terminated early, start counting from termination date, not original expiration date. Legal Action Center - May 7, 2013 Felonies, misdemeanors, violation, DWI – regardless of nature of conviction (e.g., need not be drug-related) 106 HOUSING: NYCHA (CONT.) Waiting Periods for Felonies: Class D or E: 5 years . . . and no further convictions or pending charges Legal Action Center - May 7, 2013 Class A, B, or C: 6 years 107 HOUSING: NYCHA (CONT.) Waiting Periods for Misdemeanors: • 4 years – if 1 or 2 within last 10 years • 5 years – if 3 or more within last 10 years Class B or unclassified: Legal Action Center - May 7, 2013 Class A: • 3 years – if 1 or 2 within last 10 years • 4 years – if 3 or more within last 10 years 108 HOUSING: NYCHA (CONT.) 2 years – if 1 or 2 convictions 3 years – if 3 or more of any type of conviction within last 10 years Legal Action Center - May 7, 2013 Waiting Periods for Violations or DWI Infractions: 109 HOUSING: SECTION 8 Felony convictions for violent or drug/alcohol related crimes; and Misdemeanors, violations and DWIs related to drugs/alcohol. Legal Action Center - May 7, 2013 Section 8 (now called Housing Choice) is administered by NYCHA. Section 8 applicants are only potentially disqualified for: 110 HOUSING: NYCHA & SECTION 8 Can qualify if show rehabilitation and other evidence why person is not a threat to health/safety of residents. Legal Action Center - May 7, 2013 Even if a household member has a conviction that falls within the bar . . . 111 NYCHA must consider these 6 factors: 1. Seriousness of the offense; 2. Frequency of the offense; 3. When the offense occurred; 4. Conduct underlying the offense; 5. Rehabilitation since the offense; and 6. Participation in counseling or social service programs designed to correct the offending behavior. Legal Action Center - May 7, 2013 HOUSING: NYCHA & SECTION 8 112 HOUSING: NYCHA & SECTION 8 How do you prove “rehabilitation”? • Accurately describe their convictions & underlying circumstances • Explain how they have been rehabilitated See “How to Gather Evidence of Rehabilitation,” available on our web site, www.lac.org. Legal Action Center - May 7, 2013 Applicants should collect the best evidence of rehabilitation that they can, and be able to: 113 HOUSING: NYCHA & SECTION 8 http://lac.org/doc_library/lac/publications/How_to_Get_Secti on_8_or_Public_Housing.pdf It is a big file, so it may take some time to download. Legal Action Center - May 7, 2013 Also see “How to Get Public Housing or Section 8 Even if You Have a Criminal Record,” available free at: 114 Legal Action Center - May 7, 2013 POLL #5 115 HOUSING: NYCHA & SECTION 8 Mom, dad and a 6 year old apply for NYCHA. Mom was released from parole for a D felony three years ago. What should they do? a. Decide they’re out of luck b. Wait 2 years c. Request a hearing Legal Action Center - May 7, 2013 POLL: 116 HOUSING: NYCHA & SECTION 8 ANSWER: Legal Action Center - May 7, 2013 C. Request a hearing! Ineligibility determinations can be overcome. 117 HOUSING: OTHER GOV’T FUNDING • For example, many landlords who get funding from the U.S. Department of Housing and Urban Development (“HUD”) must have – and make available – a written “tenant selection plan” explaining how they decide whether to admit people with criminal records. If such landlords deny an applicant housing because of his/her criminal record, they must give the applicant a written explanation of why the applicant was denied and a chance to challenge the denial. Legal Action Center - May 7, 2013 Some protections also apply to private apartments that get government funding and charge reduced rent. 118 HOUSING: FAIR HOUSING ACT Legal Action Center - May 7, 2013 Denying housing based on a criminal record might be a form of race discrimination that violates the Fair Housing Act because of the higher rates of arrest and conviction for people of color BUT no court has ruled on this. 119 HAVE QUESTIONS? 212-243-1313 Legal Action Center - May 7, 2013 Call the Legal Action Center 120 Thank you! This concludes the training. And thanks to the AIDS Institute, New York State Department of Health. 121