1. OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS
LEGAL ACTION CENTER
February 19, 2015

2. Before you begin – Have you registered?
If you haven’t officially registered with the NYS Department of Health AIDS Institute, please sign up!
Get credit for your attendance!
Contact Vanessa Severino at
Legal Action Center – Feb. 19, 2015

3. Who’s the Legal Action Center?
ANTI-DISCRIMINATION & PRIVACY WORK:
People with criminal records, alcohol/drug histories, and/or HIV/AIDS
Legal services & litigation
Advice to providers
Trainings
Policy advocacy & research
Legal Action Center – Feb. 19, 2015

4. Free Legal Services Including – HIV testing & confidentiality
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 – Feb. 19, 2015

5. Have Questions? Call the Legal Action Center 212-243-1313
Toll-Free: (800)
Clients: ask for “paralegal on call”
9 a.m. – 5 p.m.
Providers: ask for “attorney on call”
1 p.m. – 5 p.m.
Legal Action Center – Feb. 19, 2015

6. This Training . . .
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 – Feb. 19, 2015

7. Today’s Agenda Today’s training has 4 Parts:
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 – Feb. 19, 2015

8. Today’s Agenda (cont.)
Today’s training has 4 Parts (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 – Feb. 19, 2015

9. Today’s Agenda (cont.) Part Four – Housing Background checks and FCRA
Today’s training has 4 Parts (cont.):
Part Four – Housing
Background checks and FCRA
NYCHA & Section 8 Housing
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 – Feb. 19, 2015

10. Today’s Materials LAC Booklets: Your New York State RAP Sheet
Criminal Records and Employment
Lowering Criminal Records Barriers
Changes to the Rockefeller Drug Laws
LAC link:
Article 23-A of the NYS Correction Law
How to Gather Evidence of Rehabilitation
Video: Your Rights, Your Future: Preparing for Reentry:
Legal Action Center – Feb. 19, 2015

11. Criminal Record History (“CRH”)
PART ONE
Legal Action Center – Feb. 19, 2015

12. CRH: Criminal Records The Legal Action Center . . .
Fingerprints eligible clients;
Provides a workshop about:
Understanding criminal history info;
Collateral consequences; and
Certificates of Rehabilitation
Legal Action Center – Feb. 19, 2015

13. CRH: Criminal Records (cont.)
Legal Action Center also . . .
Provides the client with a RAP sheet;
Summarizes RAP sheet; and
May answer questions and help correct errors on the RAP sheet
Legal Action Center – Feb. 19, 2015

14. CRH: Where Is It? Who Maintains It?
Two Questions:
Where is one’s criminal record history located?
AND
Who maintains it?
Legal Action Center – Feb. 19, 2015

15. CRH: Where Is It? Who Maintains It? (cont.)
In New York State . . .
Division of Criminal Justice Services (“DCJS”)
Official “RAP” Sheet
Office of Court Administration (“OCA”)
OCA Record
Legal Action Center – Feb. 19, 2015

16. CRH: Where Is It? Who Maintains It? (cont.)
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 – Feb. 19, 2015

17. CRH: Where Is It? Who Maintains It? (cont.)
A NYS DCJS RAP Sheet is:
official
fingerprint based
One must have statutory authority to obtain a RAP sheet.
Legal Action Center – Feb. 19, 2015

18. CRH: Where Is It? Who Maintains It? (cont.)
An OCA report is NOT a RAP sheet!
It is not fingerprint-based
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 – Feb. 19, 2015

19. CRH: Where Is It? Who Maintains It? (cont.)
FBI also maintains national RAP sheets
Fingerprint-based
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 – Feb. 19, 2015

20. CRH: Background Check Sources – Employers
Where is a potential employer likely to get information from?
Legal Action Center – Feb. 19, 2015

21. CRH: Background Check Sources – Employers (cont.)
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.
Legal Action Center – Feb. 19, 2015

22. CRH: Background Check Sources – Employers (Cont.)
Where do private employers typically get their information from?
Commercial background check companies
NYS OCA
NYS Department of Corrections “inmate lookup”
This is NOT an accurate source of criminal record information
Some private companies maintain their own databases
Some local law enforcement agencies sell information
Legal Action Center – Feb. 19, 2015

23. CRH: Background Check Sources – Housing
Landlords may get their information from:
Commercial background check companies
NYS OCA
NYS Department of Corrections “inmate lookup”
This is NOT an accurate source of criminal record information
Legal Action Center – Feb. 19, 2015

24. CRH: 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 or housing application. May be denied a job or housing for lying.
There may be mistakes on the RAP sheet that can be corrected.
Legal Action Center – Feb. 19, 2015

25. CRH: RAP Sheets (cont.)
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 – Feb. 19, 2015

26. CRH: RAP Sheets (cont.)
Employer RAP Sheets include less information. They DO NOT include:
Cases that were terminated favorably and sealed (e.g., dismissals, declined to prosecute, etc.)
Sealed violation-level convictions
Legal Action Center – Feb. 19, 2015

27. POLL #1
Legal Action Center – Feb. 19, 2015

28. CRH: RAP Sheets (cont.) POLL:
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 – Feb. 19, 2015

29. CRH: RAP Sheets (cont.) ANSWER: 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 – Feb. 19, 2015

30. CRH: RAP Sheet Errors & Corrections
Our data shows more than 1/3 of RAP sheets have apparent errors or information that could be sealed.
Legal Action Center – Feb. 19, 2015

31. CRH: RAP Sheet Errors & Corrections (cont.)
What types of errors occur on RAP sheets?
What can be done to correct them?
Legal Action Center – Feb. 19, 2015

32. CRH: RAP Sheet Errors & Corrections (cont.)
Let’s talk about 5 typical RAP sheet errors and what can be done about them.
Legal Action Center – Feb. 19, 2015

33. CRH: RAP Sheet Errors & Corrections (cont.)
Missing Disposition – Entry shows a case was filed but no resolution.
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 – Feb. 19, 2015

34. CRH: RAP Sheet Errors & Corrections (cont.)
Arrest reported even when no case was filed – Although police or DA decided not to pursue case, record of arrest appears on RAP Sheet.
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 – Feb. 19, 2015

35. CRH: RAP Sheet Errors & Corrections (cont.)
Cases Terminated in Client’s Favor Are Not Sealed
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 – Feb. 19, 2015

36. CRH: RAP Sheet Errors & Corrections (cont.)
Violation-Level Convictions Are Not Sealed
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 – Feb. 19, 2015

37. CRH: RAP Sheet Errors & Corrections (cont.)
Warrants that Were (or Should Have Been) Vacated Still Appear on RAP Sheet
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 – Feb. 19, 2015

38. CRH: RAP Sheets – Sealing
What does it mean if a case is sealed?
Legal Action Center – Feb. 19, 2015

39. CRH: RAP Sheets – Sealing (cont.)
Cases terminated in client’s favor (complete dismissals) are sealed for most purposes. The court file is sealed too.
CPL §
There are exceptions. For example, law enforcement can see the cases when considering applications for employment or gun licenses.
Legal Action Center – Feb. 19, 2015

40. CRH: RAP Sheets – Sealing (cont.)
Violation-level convictions are sealed “at the state level” and not at the court level, per C.P.L. §
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 – Feb. 19, 2015

41. CRH: RAP Sheets – Sealing (cont.)
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. §
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.
If someone thinks they might be eligible, they should contact their previous defense attorney or LAC.
Legal Action Center – Feb. 19, 2015

42. CRH: RAP Sheets – Sealing (cont.)
Vacating Convictions Law (2010)
Survivors of “sex trafficking” can vacate and seal resulting convictions related to prostitution. C.P.L. § (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 – Feb. 19, 2015

43. CRH: RAP Sheets – Sealing (cont.)
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.
Legal Action Center – Feb. 19, 2015

44. CRH: RAP Sheets – Sealing (cont.)
In general
NYS 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 the very limited circumstances discussed.
Rockefeller drug law reform
prostitution-related convictions.
Legal Action Center – Feb. 19, 2015

45. POLL #2
Legal Action Center – Feb. 19, 2015

46. CRH: RAP Sheets – Sealing (cont.)
POLL:
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 only
Misdemeanor
Youthful offender adjudication
Legal Action Center – Feb. 19, 2015

47. CRH: RAP Sheets – Sealing (cont.)
Possible Answers:
None should appear.
Only the felony should appear.
Only the misdemeanor should appear.
“Paper” felony and misdemeanor should appear.
Legal Action Center – Feb. 19, 2015

48. CRH: RAP Sheets – Sealing (cont.)
ANSWER:
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.
REALITY:
It makes no difference what the sentence was. Unsealed criminal convictions, both misdemeanors and felonies, are reported.
Legal Action Center – Feb. 19, 2015

49. CRH: Criminal Background Checks – Scope of Matter
Advances in technology have created easy access to criminal records.
According to a 2010 SHRM study, approximately 92% of employers conduct criminal background checks for some potential applicants, and 73% of employers conduct criminal background checks on ALL potential applicants.
Many federal and state government agencies require background checks.
Legal Action Center – Feb. 19, 2015

50. CRH: Criminal Background Checks – Scope of Problem
Consumer Reporting Agencies often misreport criminal conviction information because they:
Use unreliable sources of information
Do not consult more than one record database
Use old information/Do not update 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 – Feb. 19, 2015

51. CRH: Criminal Background Checks – Scope of Problem (cont.)
REMEMBER – official criminal records also may have mistakes or too much info, such as:
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 – Feb. 19, 2015

52. CRH: Preparing for Commercial Background Checks
How can clients learn what may appear on commercial background checks?
Legal Action Center – Feb. 19, 2015

53. CRH: Preparing for Commercial Background Checks (cont.)
If possible, get 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)
Remember that each consumer reporting agency may have different possible errors.
There are 500+ consumer reporting agencies
Legal Action Center – Feb. 19, 2015

54. Evidence of Rehabilitation
Legal Action Center – Feb. 19, 2015
PART TWO

55. Evid. of Rehab: How to Show it?
We’ve discussed criminal records, where they are recorded, and what other people will learn about them…
… NOW how to overcome barriers they create?
Collect evidence of rehabilitation.
Apply for a Certificate of Relief from Disabilities (“CRD”) or Certificate of Good Conduct (“CGC”).
If someone is undocumented, applying for CRD or CGC may not be wise.
Legal Action Center – Feb. 19, 2015

56. Evid. of Rehab: How to Show it?
We’ll Cover . . .
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 – Feb. 19, 2015

57. Evid. of Rehab: How to Show it? (cont.)
Evidence of rehabilitation can include almost any positive activities.
Educational efforts – school or training programs
Jobs or volunteer work
Recommendation letters – from jobs, school or training, service providers or personal contacts
Programs, e.g., 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 – Feb. 19, 2015

58. Evid. of Rehab: How to Show it? (cont.)
Collect evidence of rehabilitation in advance of applications because may need it on short notice.
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 – Feb. 19, 2015

59. Evid. of Rehab: CRDs & CGCs
Certificates of Relief from Disability (CRDs) & Certificates of Good Conduct (CGCs)
Legal Action Center – Feb. 19, 2015

60. Evid. of Rehab: CRDs & CGCs
Certificates of Relief or Good Conduct Provide:
Evidence of rehabilitation
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 – Feb. 19, 2015

61. Evid. of Rehab: CRDs Eligibility for a CRD:
Felony conviction on no more than 1 date.
Any number of misdemeanors.
Certificate only applies to conviction for which it was granted.
There is no waiting period before applying.
Legal Action Center – Feb. 19, 2015

62. Evid. of Rehab: CRDs (cont.)
To Apply for a CRD:
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 – Feb. 19, 2015

63. Evid. of Rehab: CGCs Eligibility for a CGC:
Two or more felony convictions (convictions were on different dates)
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 – Feb. 19, 2015

64. Evid. of Rehab: CGCs (cont.)
To Apply for a CGC:
Once the required waiting period of three years or five years has passed, download an application at :
or call and ask parole to send you an application at (518)
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 – Feb. 19, 2015

65. Evid. of Rehab: CGCs (cont.)
To Apply for a CGC:
Once the required waiting period of three years or five years has passed, download an application at :
or call and ask parole to send you an application at (518)
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 – Feb. 19, 2015

66. Criminal-Records Based Employment Discrimination
Legal Action Center – Feb. 19, 2015
PART THREE

67. Emp. Discrim: Backdrop
Mass Incarceration
Nearly 65 million adults (almost 1 in 4) in the United States has some sort of criminal record (NELP, 65 Million Need Not Apply, March 2011)
Use of criminal background check information disproportionately affects people of color
Legal Action Center – Feb. 19, 2015

68. Emp. Discrim: Laws?
Are there any laws that help protect job applicants and employees who have criminal records?
Legal Action Center – Feb. 19, 2015

69. Emp. Discrim: Laws? (cont.)
YES!!!
There are laws that cover contents and use of background checks.
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 – Feb. 19, 2015

70. Emp. Discrim: FCRAs
What criminal record information can be included in a commercial background report?
Under NYS law,
Cannot include information about violations (sealed or unsealed).
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 – Feb. 19, 2015

71. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
Let’s talk about 3 responsibilities of employers under both FCRAs (federal and state)
Legal Action Center – Feb. 19, 2015

72. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
Employer may only get and use background report for “employment purposes,” including:
Hiring
Promotion
Reassignment
Retention
Legal Action Center – Feb. 19, 2015

73. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
Must get applicant’s (or employee’s) permission in writing before ordering a background check.
Legal Action Center – Feb. 19, 2015

74. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
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 – Feb. 19, 2015

75. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
What is an adverse action?
Includes:
Denying the job
Terminating an employee
Deciding not to promote an employee
Demoting an employee
Reassigning an employee
Legal Action Center – Feb. 19, 2015

76. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
How far in advance of actually taking the “adverse action” must an employer send out the background check?
No set time under the law
Sending out report and denial at same time does not comply with the law
Legal Action Center – Feb. 19, 2015

77. Emp. Discrim: FCRAs (cont.)
What if the report includes mistakes?
Applicant has the right to insist that the credit reporting agency:
Corrects the report
AND
Sends the employer the corrected information
Legal Action Center – Feb. 19, 2015

78. POLL #3
Legal Action Center – Feb. 19, 2015

79. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
POLL:
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 Marla says so. She is then denied the job. Were her rights violated under FCRA?
a. Yes
b. No
Legal Action Center – Feb. 19, 2015

80. Emp. Discrim: Employer Responsibilities Under Both FCRAs (cont.)
ANSWER:
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 – Feb. 19, 2015

81. Emp. Discrim: Laws Protecting Against Discrim.
Federal Law
New York State
New York City
Legal Action Center – Feb. 19, 2015

82. Emp. Discrim: Fed. Anti-Discrim. Laws
No specific employment anti-discrimination protections under federal law for people with criminal records, but . . .
April 2012 EEOC Updated 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 whether to hire or retain employees.
Legal Action Center – Feb. 19, 2015

83. Emp. Discrim: NY Anti-Discrim. Laws
Corrections Law Article 23-A
NYS Human Rights Law
NYC Human Rights Law
Negligent Hiring Law
Employer Education Act
Legal Action Center – Feb. 19, 2015

84. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
What is Correction Law Article 23-A?
It’s NY Correction Law §§
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 – Feb. 19, 2015

85. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
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).
Legal Action Center – Feb. 19, 2015

86. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
Article 23-A applies to public and most private New York employers and licensing agencies.
It does not apply to the federal government or non-New York government employers, e.g., Port Authority.
Legal Action Center – Feb. 19, 2015

87. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
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, or
Hiring or licensure would create an unreasonable risk to property or public or individual safety.
Legal Action Center – Feb. 19, 2015

88. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
NYS Correction Law § 753
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; (Next Slide . . .)
Legal Action Center – Feb. 19, 2015

89. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
NYS Correction Law § 753
8 factors (cont.):
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.
NOTE: CRDs or CGCs create a presumption of rehabilitation
Legal Action Center – Feb. 19, 2015

90. 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 youthful offender adjudications
may not ask about sealed violation convictions
may not ask about 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 – Feb. 19, 2015

91. POLL #4
Legal Action Center – Feb. 19, 2015

92. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
POLL: An application asks, “Have you ever been convicted of any offense?” Is this a legal question? a. Yes b. No
Legal Action Center – Feb. 19, 2015

93. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
A NSWER: b. No. Although the question only asks about convictions, it does not exclude sealed convictions.
Legal Action Center – Feb. 19, 2015

94. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
How do these laws work in practice?
Employer may not have a flat policy—
“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 – Feb. 19, 2015

95. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
Under New York law, what must an employer do when considering a job applicant with a criminal record?
Employer must evaluate each job applicant individually, considering more than the criminal record.
Legal Action Center – Feb. 19, 2015

96. Emp. Discrim: NY Anti-Discrim. Laws (cont.)
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.
Legal Action Center – Feb. 19, 2015

97. Emp. Discrim: Potential Remedies
Informal Resolution/Negotiation OR
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 Rights
1 year SOL - Complaint should be filed within one year of the last alleged act of discrimination
EEOC
300 days from the day the discrimination took place
There are nuances relating to an EEOC claim
File a Lawsuit Directly Asserting NYS/NYC anti-discrimination claims already discussed
- 3 year SOL
Note: Can only assert Title VII claim (federal claim) if you go through administrative process
Legal Action Center – Feb. 19, 2015

98. Emp. Discrim: Other NY Laws
NYS Negligent Hiring Law (2008)
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 – Feb. 19, 2015

99. Emp. Discrim: Other NY Laws (cont.)
NYS “Employer Education Act” (2008) 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 – Feb. 19, 2015

100. Emp. Discrim: Other NY Laws (cont.)
Ban the Box
NYC Executive Order No. 151
Buffalo
Rochester
Yonkers
Syracuse
Ulster County Executive Order
The Fair Chance Act (NYC) (pending)
Legal Action Center – Feb. 19, 2015

101. HOUSING
Legal Action Center – Feb. 19, 2015
PART FOUR

102. Is it legal to deny someone housing because of a criminal record?
Housing: Generally
Is it legal to deny someone housing because of a criminal record?
Legal Action Center – Feb. 19, 2015

103. Housing: Generally (cont.)
There is NO federal or New York State law that expressly prohibits housing discrimination based on a criminal record.
Legal Action Center – Feb. 19, 2015

104. Housing: Background Checks
Fair Credit Reporting Acts (FCRAs) create some requirements.
All landlords must tell an applicant if they are going to get his/her criminal background report through a background check company.
Landlords also must tell the housing applicant if they deny housing because of the background check and give the applicant contact information for the background check company.
Legal Action Center – Feb. 19, 2015

105. Housing: Background Checks (cont.)
Some FCRA requirements for consumer reporting agencies:
Must give an individual a free copy of the report if the applicant asks for it within 60 days of the housing denial.
If there are mistakes in the background check, the applicant can 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.
Legal Action Center – Feb. 19, 2015

106. Housing: Background Checks (cont.)
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 – Feb. 19, 2015

107. Housing: New York City Housing Authority (“NYCHA”)
Eligibility for Admission
Federal law prohibits housing authorities from admitting people if any household member:
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 – Feb. 19, 2015

108. Housing: NYCHA (cont.)
Federal law gives local housing authorities the discretion to exclude people whose history of criminal activity . . .
“would adversely affect the health,
safety, or welfare of other tenants.”
Following this, NYCHA’s policies disqualify people who it determines “threaten the health and safety of NYCHA residents and property.”
Legal Action Center – Feb. 19, 2015

109. Housing: NYCHA (cont.)
Whose criminal record affects eligibility for public housing?
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 – Feb. 19, 2015

110. Housing: NYCHA (cont.)
Which conviction can potentially disqualify people from NYCHA?
Felonies and misdemeanors
violation & DWI - no automatic ineligibility, but NYCHA may still find family ineligible (e.g., used of controlled substance, including marijuana, can be grounds for 3 years of ineligibility)
NYCHA “overlooks” some minor convictions.
Recently expanded the list of overlooked offenses.
Most criminal convictions potentially disqualify households for a certain number of years after completion of sentence:
Calculated from the end of sentence, including release from incarceration but not completion of parole/probation
Legal Action Center – Feb. 19, 2015

111. Housing: NYCHA (cont.) Waiting Periods:
Class A, B, or C Felony: 6 years
Class D or E Felony: 5 years
Class A Misdemeanor: 4 years
Class B or unclassified Misdemeanor: 3 years
. . . and no further convictions or pending charges
Note: longest applicable period when multiple convictions
Legal Action Center – Feb. 19, 2015

112. Housing: Section 8
Section 8 (now called Housing Choice) is administered by NYCHA. Section 8 applicants are only potentially disqualified for:
Felony convictions for violent or drug/alcohol related crimes; and
Misdemeanors, violations and DWIs related to drugs/alcohol.
Legal Action Center – Feb. 19, 2015

113. Housing: NYCHA & Section 8
Even if a household member has a conviction that falls within the bar . . .
Can qualify if show rehabilitation and other evidence why person is not a threat to health/safety of residents.
Legal Action Center – Feb. 19, 2015

114. Housing: NYCHA & Section 8
NYCHA must consider these factors:
Seriousness of the offense;
Frequency of the offense(s);
When the offense occurred;
Whether fine paid and sentence served;
Any further convictions or charges after finding of ineligibility;
Conduct underlying the offense;
Rehabilitation since the offense; and
Participation in counseling or social service programs designed to correct the offending behavior.
Legal Action Center – Feb. 19, 2015

115. Housing: NYCHA & Section 8
How do you prove “rehabilitation”?
Applicants should collect the best evidence of rehabilitation that they can, and be able to:
Accurately describe their convictions & underlying circumstances
Explain how they have been rehabilitated
Legal Action Center – Feb. 19, 2015

116. Housing: Other Gov’t Funding
Some protections also apply to private apartments that get government funding and charge reduced rent.
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 – Feb. 19, 2015

117. Housing: Fair Housing Act
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.
Legal Action Center – Feb. 19, 2015

118. Have Questions? Call the Legal Action Center 212-243-1313
Legal Action Center – Feb. 19, 2015

119. Please return the evaluation to get Certificate of Attendance.
Feedback?
Please return the evaluation to get Certificate of Attendance.
Legal Action Center – Feb. 19, 2015

120. Get credit for your attendance!
Have you registered?
Thank you for completing this webinar!
If you haven’t officially registered with the NYS Department of Health AIDS Institute, please sign up!
Get credit for your attendance!
Contact Vanessa Severino at
Legal Action Center – Feb. 19, 2015

121. Thank you!
This concludes the training. And thanks to the AIDS Institute, New York State Department of Health.
Legal Action Center – Feb. 19, 2015