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OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS LEGAL ACTION CENTER 2013 1.

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Presentation on theme: "OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS LEGAL ACTION CENTER 2013 1."— Presentation transcript:

1 OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS LEGAL ACTION CENTER 2013 1

2 W HO S THE L EGAL A CTION C ENTER ? ANTI-DISCRIMINTATION & PRIVACY WORK: People with criminal records, alcohol/drug histories, and/or HIV/AIDS Legal services & litigation Advice to providers Trainings Policy advocacy & research 2 Legal Action Center - May 7, 2013

3 F REE L EGAL S ERVICES 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 3 Legal Action Center - May 7, 2013

4 H AVE Q UESTIONS ? Call the Legal Action Center 212-243-1313 Toll-Free: (800) 223-4044 Clients: ask for paralegal on call 9 a.m. – 5 p.m. Providers: ask for attorney on call 1 p.m. – 5 p.m. 4 Legal Action Center - May 7, 2013

5 T HIS T RAINING... 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. 5 Legal Action Center - May 7, 2013

6 T ODAY S A GENDA Todays 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 6 Legal Action Center - May 7, 2013

7 T ODAY S A GENDA ( CONT.) Todays 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 7 Legal Action Center - May 7, 2013

8 T ODAY S A GENDA ( CONT.) Todays training has 4 Parts (cont.): Part Four – Housing Background checks and FCRA NYCHA & Section 8 Housing o Section 8 is now called Housing Choice. Todays presentation will use the term Section 8. Other government funded housing (brief) Fair Housing Act (brief) 8 Legal Action Center - May 7, 2013

9 T ODAY S M ATERIALS LAC Booklets: Your New York State RAP Sheet Criminal Records and Employment Lowering Criminal Records Barriers (updated version on our web site, www.lac.org)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 9 Legal Action Center - May 7, 2013

10 CRIMINAL RECORD HISTORY (CRH) PART ONE 10 Legal Action Center - May 7, 2013

11 CRH: C RIMINAL R ECORDS The Legal Action Center... Fingerprints eligible clients; Provides a workshop about: Understanding criminal history info; Collateral consequences; and Certificates of Rehabilitation 11 Legal Action Center - May 7, 2013

12 CRH: C RIMINAL R ECORDS ( 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 12 Legal Action Center - May 7, 2013

13 CRH: W HERE I S I T ? W HO M AINTAINS I T ? Two Questions: 1.Where is ones criminal record history located? AND 2.Who maintains it? 13 Legal Action Center - May 7, 2013

14 CRH: W HERE I S I T ? W HO M AINTAINS I T ? ( CONT.) In New York State... 1.Division of Criminal Justice Services (DCJS) Official RAP Sheet 2.Office of Court Administration (OCA) OCA Record 14 Legal Action Center - May 7, 2013

15 CRH: W HERE I S I T ? W HO M AINTAINS I T ? ( 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 - May 7, 2013 15

16 CRH: W HERE I S I T ? W HO M AINTAINS I T ? ( CONT.) A NYS DCJS RAP Sheet is: official fingerprint based One must have statutory authority to obtain a RAP sheet. Legal Action Center - May 7, 2013 16

17 CRH: W HERE I S I T ? W HO M AINTAINS I T ? ( 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 - May 7, 2013 17

18 CRH: W HERE I S I T ? W HO M AINTAINS I T ? ( 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 - May 7, 2013 18

19 CRH: B ACKGROUND C HECK S OURCES – E MPLOYERS Where is a potential employer likely to get information from? Legal Action Center - May 7, 2013 19

20 CRH: B ACKGROUND C HECK S OURCES – E MPLOYERS ( 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 - May 7, 2013 20

21 CRH: B ACKGROUND C HECK S OURCES – E MPLOYERS (C ONT.) 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 - May 7, 2013 21

22 CRH: B ACKGROUND C HECK S OURCES – H OUSING 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 - May 7, 2013 22

23 CRH: RAP S HEETS 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; and/or If they dont 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 23

24 CRH: RAP S HEETS ( 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 - May 7, 2013 24

25 CRH: RAP S HEETS ( CONT.) Most employer RAP Sheets include less information. They SHOULD NOT include: 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 25

26 POLL #1 Legal Action Center - May 7, 2013 26

27 CRH: RAP S HEETS ( 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 - May 7, 2013 27

28 CRH: RAP S HEETS ( 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 - May 7, 2013 28

29 CRH: RAP S HEET E RRORS & C ORRECTIONS Our data shows almost HALF of RAP sheets have apparent errors or information that could be sealed. Legal Action Center - May 7, 2013 29

30 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) What types of errors occur on RAP sheets? What can be done to correct them? Legal Action Center - May 7, 2013 30

31 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) Lets talk about 5 typical RAP sheet errors and what can be done about them. Legal Action Center - May 7, 2013 31

32 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) 1.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 - May 7, 2013 32

33 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) 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. 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 DAs office stating that they declined to prosecute. If DAs office says that they never got case from the police, contact LAC. Legal Action Center - May 7, 2013 33

34 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) 3.Cases Terminated in Clients 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 - May 7, 2013 34

35 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) 4.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 - May 7, 2013 35

36 CRH: RAP S HEET E RRORS & C ORRECTIONS ( CONT.) 5.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 - May 7, 2013 36

37 CRH: RAP S HEETS – S EALING What does it mean if a case is sealed? Legal Action Center - May 7, 2013 37

38 CRH: RAP S HEETS – S EALING ( CONT.) Cases terminated in clients 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 38

39 CRH: RAP S HEETS – S EALING ( CONT.) Violation-level convictions are sealed at the state level and not at the court level, per C.P.L. § 160.55 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 39

40 CRH: RAP S HEETS – S EALING ( 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. § 160.58 If a case is conditionally sealed, it should not appear on RAP sheets requested by most employers. Most employers are not allowed to ask about conditionally sealed convictions. If someone thinks they might be eligible, they should contact their previous defense attorney or LAC. Legal Action Center - May 7, 2013 40

41 CRH: RAP S HEETS – S EALING ( CONT.) 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 41

42 CRH: RAP S HEETS – S EALING ( 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 - May 7, 2013 42

43 CRH: RAP S HEETS – S EALING ( 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 - May 7, 2013 43

44 POLL #2 Legal Action Center - May 7, 2013 44

45 CRH: RAP S HEETS – S EALING ( CONT.) POLL: 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 45

46 CRH: RAP S HEETS – S EALING ( CONT.) Possible answers: 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 46

47 CRH: RAP S HEETS – S EALING ( CONT.) ANSWER: D. Misdemeanor and paper felony should appear. MYTHS: Many people refer to felonies that didnt result in prison terms as paper felonies and think that these wont show up on a background check or dont need to be reported. OR think that misdemeanors wont be reported. REALITY: It makes no difference what the sentence was. Unsealed criminal convictions, both misdemeanors and felonies, are reported. Legal Action Center - May 7, 2013 47

48 CRH: C RIMINAL B ACKGROUND C HECKS – S COPE OF M ATTER Advances in technology have created easy access to criminal records. 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 48

49 CRH: C RIMINAL B ACKGROUND C HECKS – S COPE OF P ROBLEM Credit 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 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 49

50 CRH: C RIMINAL B ACKGROUND C HECKS – S COPE OF P ROBLEM ( 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 - May 7, 2013 50

51 CRH: P REPARING FOR C OMMERCIAL B ACKGROUND C HECKS How can clients learn what may appear on commercial background checks? Legal Action Center - May 7, 2013 51

52 CRH: P REPARING FOR C OMMERCIAL B ACKGROUND C HECKS ( 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, 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 52

53 EVIDENCE OF REHABILITATION PART TWO 53 Legal Action Center - May 7, 2013

54 E VID. OF R EHAB : H OW TO S HOW IT ? Weve 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 54

55 E VID. OF R EHAB : H OW TO S HOW IT ? Well 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 – May 7, 2013 55

56 E VID. OF R EHAB : H OW TO S HOW 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, 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 56

57 E VID. OF R EHAB : H OW TO S HOW 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 – May 7, 2013 57

58 E VID. OF R EHAB : CRD S & CGC S Certificates of Relief from Disability (CRDs) & Certificates of Good Conduct (CGCs) Legal Action Center - May 7, 2013 58

59 E VID. OF R EHAB : CRD S & CGC S 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 - May 7, 2013 59

60 E VID. OF R EHAB : CRD S 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 - May 7, 2013 60

61 E VID. OF R EHAB : CRD S ( 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 - May 7, 2013 61

62 E VID. OF R EHAB : CGC S 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 - May 7, 2013 62

63 E VID. OF R EHAB : CGC S ( CONT.) To Apply for a CGC: Once the required waiting period of three years or five years has passed, download an application at : 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 63

64 E VID. OF R EHAB : CGC S ( CONT.) To Apply for a CGC: Once the required waiting period of three years or five years has passed, download an application at : 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 64

65 CRIMINAL-RECORDS BASED EMPLOYMENT DISCRIMINATION PART THREE 65 Legal Action Center - May 7, 2013

66 E MP. D ISCRIM : L AWS ? Are there any laws that help protect job applicants and employees who have criminal records? Legal Action Center - May 7, 2013 66

67 E MP. D ISCRIM : L AWS ? ( CONT.) Legal Action Center - May 7, 2013 67 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.

68 E MP. D ISCRIM : FCRA S Legal Action Center - May 7, 2013 68 What criminal record information can be included in a commercial background report? 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.

69 E MP. D ISCRIM : FCRA S ( CONT.) Legal Action Center - May 7, 2013 69 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.

70 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) Legal Action Center - May 7, 2013 70 Lets talk about 3 responsibilities of employers under both FCRAs (federal and state)

71 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) Legal Action Center - May 7, 2013 71 1.Employer may only get and use background report for employment purposes, including: Hiring Promotion Reassignment Retention

72 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) Legal Action Center - May 7, 2013 72 2.Must get applicants (or employees) permission in writing before ordering a background check.

73 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) Legal Action Center - May 7, 2013 73 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.

74 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) Legal Action Center - May 7, 2013 74 What is an adverse action? Includes: Denying the job Terminating an employee Deciding not to promote an employee Demoting an employee Reassigning an employee

75 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) Legal Action Center - May 7, 2013 75 How far in advance of actually taking the adverse action must an employer send out the background check? 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

76 POLL #3 Legal Action Center - May 7, 2013 76

77 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( 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 Martha says so. She is then denied the job. Were her rights violated under FCRA? a. Yes b. No Legal Action Center - May 7, 2013 77

78 E MP. D ISCRIM : E MPLOYER R ESPONSIBILITIES U NDER B OTH FCRA S ( CONT.) ANSWER: Yes, Marlas 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 78

79 E MP. D ISCRIM : L AWS P ROTECTING A GAINST D ISCRIM. 1.Federal Law 2.New York State 3.New York City Legal Action Center - May 7, 2013 79

80 E MP. D ISCRIM : F ED. A NTI -D ISCRIM. L AWS No specific employment anti-discrimination protections under federal law for people with criminal records, but... 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 80

81 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS Corrections Law Article 23-A NYS Human Rights Law NYC Human Rights Law Negligent Hiring Law Employer Education Act Legal Action Center - May 7, 2013 81

82 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.) What is Correction Law Article 23-A? Its NY Correction Law §§ 750-755 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 82

83 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.) A violation of Article 23-A is a violation of NYS Human Rights Law and the NYC Human Rights Law (its an unlawful discriminatory practice). Legal Action Center - May 7, 2013 83

84 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.) Article 23-A applies to public and 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 - May 7, 2013 84

85 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.) Applicant or current employee may not be denied job or license or acted adversely upon because of conviction records unless: 1.Theres 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 85

86 NYS Correction Law § 753 8 factors 8 factors an employer must consider when evaluating conviction history: 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 persons fitness or ability to perform duties; 4.Time elapsed since the criminal offense; (Next Slide...) Legal Action Center - May 7, 2013 86 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.)

87 NYS Correction Law § 753 8 factors (cont.): 5.Persons age at the time of the criminal offense; 6.Seriousness of the offense(s); 7.Any information produced by applicant to show rehabilitation; and 8.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 - May 7, 2013 87 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.)

88 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 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 88 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.)

89 POLL #4 Legal Action Center - May 7, 2013 89

90 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( 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 - May 7, 2013 90

91 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.) A NSWER: b. No. Although the question only asks about convictions, it does not exclude sealed convictions. Legal Action Center - May 7, 2013 91

92 How do these laws work in practice? Employer may not have a flat policy We dont 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 92 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.)

93 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 - May 7, 2013 93 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.)

94 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 - May 7, 2013 94 E MP. D ISCRIM : NY A NTI -D ISCRIM. L AWS ( CONT.)

95 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 applicants criminal record or incarceration history. N.Y. Exec. Law § 296(15). Legal Action Center - May 7, 2013 95 E MP. D ISCRIM : O THER NY L AWS

96 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 - May 7, 2013 96 E MP. D ISCRIM : O THER NY L AWS ( CONT.)

97 HOUSING PART FOUR 97 Legal Action Center - May 7, 2013

98 H OUSING : G ENERALLY Is it legal to deny someone housing because of a criminal record? Legal Action Center - May 7, 2013 98

99 H OUSING : G ENERALLY ( CONT.) There is NO federal or New York State law that expressly prohibits housing discrimination based on a criminal record. Legal Action Center - May 7, 2013 99

100 H OUSING : B ACKGROUND C HECKS 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. 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 100

101 H OUSING : B ACKGROUND C HECKS ( CONT.) 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. 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 101

102 H OUSING : N EW Y ORK C ITY H OUSING A UTHORITY (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 - May 7, 2013 102

103 H OUSING : 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. Legal Action Center - May 7, 2013 103

104 H OUSING : NYCHA ( CONT.) As permitted by federal law, NYCHAs own policies disqualify people who NYCHA believes threaten the health and safety of NYCHA residents and property. Legal Action Center - May 7, 2013 104

105 H OUSING : 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 - May 7, 2013 105

106 H OUSING : NYCHA ( CONT.) Which conviction can potentially disqualify people from NYCHA? Felonies, misdemeanors, violation, DWI – regardless of nature of conviction (e.g., need not be drug-related) 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 106

107 H OUSING : NYCHA ( CONT.) Waiting Periods for Felonies: Class A, B, or C: 6 years Class D or E: 5 years... and no further convictions or pending charges Legal Action Center - May 7, 2013 107

108 H OUSING : NYCHA ( CONT.) Waiting Periods for Misdemeanors: Class A: 4 years – if 1 or 2 within last 10 years 5 years – if 3 or more within last 10 years Class B or unclassified: 3 years – if 1 or 2 within last 10 years 4 years – if 3 or more within last 10 years Legal Action Center - May 7, 2013 108

109 H OUSING : NYCHA ( CONT.) Waiting Periods for Violations or DWI Infractions: 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 109

110 H OUSING : S ECTION 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 - May 7, 2013 110

111 H OUSING : NYCHA & S ECTION 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 - May 7, 2013 111

112 H OUSING : NYCHA & S ECTION 8 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 112

113 H OUSING : NYCHA & S ECTION 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 See How to Gather Evidence of Rehabilitation, available on our web site, www.lac.org.www.lac.org Legal Action Center - May 7, 2013 113

114 H OUSING : NYCHA & S ECTION 8 Also see How to Get Public Housing or Section 8 Even if You Have a Criminal Record, available free at: 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 114

115 POLL #5 Legal Action Center - May 7, 2013 115

116 H OUSING : NYCHA & S ECTION 8 POLL: 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 theyre out of luck b. Wait 2 years c. Request a hearing Legal Action Center - May 7, 2013 116

117 H OUSING : NYCHA & S ECTION 8 ANSWER: C. Request a hearing! Ineligibility determinations can be overcome. Legal Action Center - May 7, 2013 117

118 H OUSING : O THER G OV T F UNDING 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 - May 7, 2013 118

119 H OUSING : F AIR H OUSING A CT 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 - May 7, 2013 119

120 H AVE Q UESTIONS ? Call the Legal Action Center 212-243-1313 Legal Action Center - May 7, 2013 120

121 Thank you! This concludes the training. And thanks to the AIDS Institute, New York State Department of Health. 121


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