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 . . .
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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:
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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
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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
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PART ONE
Legal Action Center - May 7, 2013
CRIMINAL RECORD
HISTORY (“CRH”)
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CRH: CRIMINAL RECORDS
The Legal Action Center . . .
 Collateral consequences; and
Legal Action Center - May 7, 2013
 Fingerprints eligible clients;
 Certificates of Rehabilitation
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 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;
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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”)
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 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.)
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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
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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
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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
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CRH: BACKGROUND CHECK SOURCES – EMPLOYERS
Legal Action Center - May 7, 2013
Where is a potential employer
likely to get information from?
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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?
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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
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 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
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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:
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 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.)
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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:
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Legal Action Center - May 7, 2013
POLL #1
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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:
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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:
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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
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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?
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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.)
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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.
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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.
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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
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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
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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
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CRH: RAP SHEETS – SEALING
Legal Action Center - May 7, 2013
What does it mean if a case is sealed?
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 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.)
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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
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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.
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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.)
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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.
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Legal Action Center - May 7, 2013
POLL #2
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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:
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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:
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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.
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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.
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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)
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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
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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
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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.)
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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.)
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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
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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).
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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.
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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:
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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:
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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
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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
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Legal Action Center - May 7, 2013
POLL #4
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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:
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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:
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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—
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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?
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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
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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)
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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)
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PART FOUR
Legal Action Center - May 7, 2013
HOUSING
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HOUSING: GENERALLY
Legal Action Center - May 7, 2013
Is it legal to deny someone housing
because of a criminal record?
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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.
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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.
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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.
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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:
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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 . . .
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 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.)
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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?
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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)
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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
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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
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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:
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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:
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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 . . .
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 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
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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:
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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:
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Legal Action Center - May 7, 2013
POLL #5
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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:
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HOUSING: NYCHA & SECTION 8
ANSWER:
Legal Action Center - May 7, 2013
C. Request a hearing! Ineligibility determinations can be overcome.
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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.
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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.
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HAVE QUESTIONS?
 212-243-1313
Legal Action Center - May 7, 2013
 Call the Legal Action Center
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Thank you!
This concludes the training.
And thanks to the AIDS Institute,
New York State Department of Health.
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