New York - National HIRE Network

2017

This material is based upon work supported by the SAMHSA/CSAT Contract Order No. HHSP233201600248A. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the SAMHSA/CSAT.

NEW YORK This section summarizes New York State laws, policies and practices that promote or hinder successful re-entry for justice-involved New York residents, particularly those with substance use or mental health disorders. Re-entry service providers, such as peer-support coaches, mentors, and outreach workers, will find that if they understand these laws and policies, they will have greater success helping individuals successfully re-enter. Providers also should read Section I of this report, which summarizes federal barriers to jobs, housing, and higher education for people with criminal records. Section I also summarizes legal protections and initiatives to help people overcome these barriers.

EMPLOYMENT A broad range of New York laws and policies restricts the ability of justice-involved individuals to work in specific jobs and industries. Section I highlighted the federal laws that limit employment in health care,1 commercial transportation,2 insurance3 and others. New York State law also imposes criminal record restrictions on jobs and occupational licensure. Over 100 jobs and professions require some type of license or background check through a state or city agency. 4 These include:     

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New York State Department of State (licenses security guards, alarm installers, realtors, notaries, and many other professions); New York City Department of Education (conducts background checks of private and public school teachers and staff, including custodial staff); New York City Taxi & Limousine Commission (licenses taxi and livery cab drivers); New York City Department of Consumer Affairs (licenses locksmiths, home improvement contractors, plumbers); and New York State Department of Health (conducts background check for home health aides and certified nursing assistants). New York’s Industry-Specific Restrictions on Employment

For some industries, New York State laws restrict employment for people with criminal records, in addition to those restrictions in federal law. The largest industries with such restrictions are: 

Health Care: Licensure and employment are regulated differently in the health care sector. The New York State Department of Health (DOH) performs background screening on home health aides and certified nurse assistants. DOH is legally authorized to bar employment in many situations. The following crimes presumptively disqualify an applicant from employment: 3

Helping Justice-Involved Individuals in New York SAMHSA/Legal Action Center 2017

o A felony sex offense conviction at any time; o Any conviction pursuant to Penal Law Sections 260.25, 260.32, 260.34 (abandonments or endangerment of children, the elderly, or mentally or physically challenged individuals); o A felony conviction involving violence within the past ten years. o Any similar offense in any other jurisdiction outside of New York State.5 Certain other convictions are not presumptively disqualifying, but also trigger close DOH scrutiny. For all of these convictions, however, DOH can allow these individuals to work in the sector if, in its discretion, the prospective employee will not jeopardize the health, safety or welfare of patients, residents or clients. People are entitled to present such evidence to DOH and to appeal denials of clearance.6. The New York State Justice Center for the Protection of People with Special Needs (Justice Center) centralizes the background screening and clearance for facilities or service providers overseen by several other state health agencies. Among these are: the Office of Alcohol and Substance Abuse Services (OASAS), Office of Mental Health (OMH), and the Office for People with Developmental Disabilities (OPWDD). The Justice Center also grants or denies employment clearance for providers of residential programs for children overseen by the Office of Children and Family Services (OCFS). 

Food services and hospitality: This industry has become more open to individuals with felony convictions since 2009, due to the passage of a law that lifted a prohibition on hiring individuals with felony convictions unless they had been granted a pardon or had a Certificate of Relief from Disabilities or Certificate of Good Conduct. Since 2009, employers in this industry must follow New York’s anti-discrimination law, Article 23-A (see below), like any other employer.

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Background Screens

In New York, the Division of Criminal Justice Services (DCJS) maintains criminal history information. The state allows varying levels of access to DCJS records depending on the individual or entity requesting the records and their purpose in making the request. Individuals have a right to inspect their DCJS record of arrest and prosecution (RAP sheet).7 New York State Labor Law prohibits employers from requiring individuals to be fingerprinted as a condition of obtaining or continuing a job, unless required to do so by law. This section does not apply to:   

Employees of state or municipal departments; Employees of legally incorporated hospitals, and employees of medical colleges associated with such hospitals; Employees of private proprietary hospitals.

4 Helping Justice-Involved Individuals in New York SAMHSA/Legal Action Center 2017

New York State Labor Law also requires that every employer shall post, in a place accessible to his or her employees, a copy of Correction Law Article 23-A, which deals with the licensing and employment of persons convicted of crimes.8

The New York State Office of Court Administration (OCA) also provides a New York Statewide criminal history record search (CHRS) for a fee of $65.00. The New York Statewide CHRS report has the following limitations and restrictions:9             

The report does not include Family, Civil, or Federal court case information. The NY Statewide CHRS Report is based on an ‘exact match’ of Name and DOB. Any ‘variation’ of the individual’s Name and DOB is not considered a match. The report is subject to non-disclosure of certain case dispositions due to NYS Office of Court Administration’s policies (e.g., Misdemeanor Redemption, non-criminal offense cases) or sealed records under NYS law. Town Court and Village Court disposition data is not available for the period May 1991 through 2002. As of May 2007, all Town and Village Courts report to OCA. Town and Village disposition data from 2002 through 2007 is limited. In accordance with the Youthful Offender Legislation CPL720.15(1), the NY Statewide CHRS report will not report pending criminal cases categorized as Youthful Offender Eligible. Criminal cases ‘Transferred’ or ‘Removed’ (CPL 725) to Family Court are not reported. Criminal disposition information which appears on the NYS CHRS Report is as complete and accurate as the ‘electronic data’ furnished to the NYS Office of Court Administration. The NY Statewide CHRS report is not a nationwide background check. The NY Statewide CHRS report is not an FBI background search check. The report does not include case dispositions for ‘non-criminal offenses’ (e.g., Violations, Infractions). The report does not include case dispositions for individuals whose only conviction was a single misdemeanor more than ten years prior to the date of request (Misdemeanor Redemption Policy). The results of the NYS / CHRS search is not certified. Cases appearing solely with charges that do not result in fingerprinting (e.g., Violations, Infractions, Unclassified Misdemeanors -UM) are not reflected on an individual’s NYS Criminal History Report (i.e., Rap Sheet), and are similarly not generated as part of the NYS Office of Court Administration’s CHRS Report.

Resources For detailed information on federal, state and local restrictions on specific industries and occupations in New York State, see the Legal Action Center’s report, “Closing the Skills Gap & Opening More Doors”. 5 Helping Justice-Involved Individuals in New York SAMHSA/Legal Action Center 2017

See Legal Action Center’s New York State Occupational Licensing Survey for a review of criminal record screening policies for over 100 occupational licenses, available at http://lac.org/wp-content/uploads/2014/07/Occupational-Licensing-Survey-2006.pdf. See The Legal Action Center’s guide, “Your New York State Rap Sheet,” explains how individuals may obtain and understand criminal records.

Legal Protections for Job-Seekers and Workers in New York Although finding work with a criminal record remains an uphill battle, many federal, state and local laws can help individuals with criminal histories overcome these barriers in New York State. 

New York State Employment Laws

Section I discusses the United States Equal Employment Opportunity Commission (EEOC) guidance prohibiting employers from imposing flat bans against hiring workers with criminal records, but it is worth repeating here. The EEOC instructs employers to take account of factors like the seriousness of a person’s criminal record or its relationship to the type of job they are seeking, length of time since the job seeker committed a crime, the positive things done before and after involvement in the criminal justice system, and other factors. However, New York offers some of the best employment protections in the country for workers with criminal records. Article 23-A of the New York State Corrections Law prohibits employers from imposing blanket bans on hiring candidates with criminal histories.10 It also requires employers to take into account the following factors, in addition to criminal record information: 

New York’s stated public policy of encouraging the licensure and employment of persons previously convicted of one or more criminal offenses.

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The specific duties and responsibilities substantially related to the license or employment sought or held by the person.

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The bearing, if any, that a person’s previous criminal offense or offenses will have on his fitness or ability to perform one or more such duties or responsibilities.

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The time which has elapsed since the occurrence of the criminal offense or offenses.

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A person’s age at the time of the criminal offense or offenses.

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The seriousness of the offense or offenses. 6


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Any information the person produces, or which is produced on his behalf, in regard to his rehabilitation and good conduct.

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The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general.11

In addition, New York State law prohibits employers from asking about or considering arrests that terminated in a person’s favor (e.g., cases that were dismissed outright or dismissed after an Adjournment in Contemplation of Dismissal, or the prosecutor declined to prosecute) as well as cases that were sealed.12 Employers may consider arrests where a person was found not responsible due to mental illness or defect or found incapacitated, or if the case was dismissed but covered by another conviction. In addition to state law, some cities like New York City (NYC) may have an ordinance that mirrors or expands protections for job seekers with criminal records. For example, the New York City Human Rights Law also prohibits the consideration of arrests termin ated in a person’s favor. NYC also prohibits employers from using credit history in employment and licensing decisions.13 An increasing number of cities and counties in New York State have enacted laws or policies that prohibit employers from asking questions about an applicant’s conviction history before providing a conditional job offer. These are often referred to as “ban the box” laws or policies, because many employment applications use a check-off box to ask about criminal history. New York City joined this group in June 2015 with its Fair Chance Act. As of June 2016, jurisdictions with “ban the box” laws or policies include:           

Buffalo Dutchess County Ithaca Kingston Newburgh New York City Rochester Syracuse Ulster County Woodstock Yonkers.14

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Sealing Laws


Workers with criminal histories also may be able to have all or part of their criminal record sealed or kept confidential. “Sealed” cases will not be available to most employers. The types of cases that can be sealed in New York are limited to: o arrests that terminated in the person’s favor;15 o most violation convictions;16 o upon application to the sentencing court, certain convictions can be conditionally sealed as part of Rockefeller Drug Law Reform;17 o convictions that were vacated because they resulted from victimization as a sex worker;18 o youthful offender adjudications;19 and o juvenile delinquent adjudications.20 In April 2017, Governor Cuomo signed legislation that will allow people convicted of not more than two crimes of which only one can be a felony, to apply to have their record sealed ten years after they were last sentenced or discharged from incarceration, whichever is latest. Only certain crimes are eligible and there are other criteria as well.21 

Fair Credit Reporting Act (FCRA)

As described in Section I, commercial background screening companies (consumer reporting agencies also known as CRAs) and the private-sector employers who use them must follow the federal Fair Credit Reporting Act (FCRA). FCRA requires procedures to ensure accuracy as well as timely communication with prospective employees being screened. New York State also has a FCRA law.22 This state statute prohibits reports from containing information about arrests that did not lead to a criminal conviction and arrests that led to a violation-level offense. Screening companies may only report unsealed misdemeanor and felony offenses. Further, the background check can only include “adverse information” dating back seven years unless the job pays or will pay $25,000 or more, in which case there is no time limit. Employers and consumer reporting agencies can be taken to court for violating either law, New York or the federal FCRA. 

Certificate of Relief from Disabilities and Certificates of Good Conduct

In New York State, individuals convicted of crimes can receive Certificates of Relief from Disabilities or a Certificate of Good Conduct if they demonstrate rehabilitation to the State’s satisfaction.23 These certificates lift automatic legal or regulatory bars to employment due to a criminal conviction for most individuals (restrictions may still be imposed on a case-by-case basis). The Certificates can also provide evidence to employers that a worker with a criminal record is unlikely to commit a new offense while on-the-job. The process for obtaining these certificates often requires a community corrections official to thoroughly review the applicant’s criminal history and rehabilitative efforts. 8 Helping Justice-Involved Individuals in New York SAMHSA/Legal Action Center 2017

Statewide Initiatives – Changes in the Works New York State Governor Andrew Cuomo announced several executive actions to reduce barriers for New Yorkers with criminal convictions in September 2015. Employment-related changes that are underway as of June 2016 include: 

Uniform guidelines that evaluate qualified applicants for state occupational licenses. New guidelines will apply to applications for licenses, including those for barbers, paramedics and real estate brokers, among others. According to these guidelines, there is a presumption towards granting a license, unless an individualized consideration of an applicant’s criminal weighs against it. Before these guidelines, there was an uneven approach to reviewing applications for occupational licenses.

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“Fair chance hiring” for New York State agencies. Applicants for competitive positions with New York State agencies will not be required to discuss or disclose information about prior convictions until and unless the agency has interviewed the candidate and is interested in hiring him or her.

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Amended licensing and employment regulations. Changes in ten regulations have reduced barriers for people with criminal convictions to be employed in licensed occupations. Affected agencies include the Departments of Health, State, and Environmental Conservation.

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Job search efforts aided by new technology donated by Apploi Corp. This new kiosk-based system will allows job-seekers with criminal convictions to overcome negative pre-conceptions by marketing themselves on video to potential employers.

How Providers Can Help 

Advise clients to get copies of arrest and conviction records – RAP sheets”—when possible. It is critical for job seekers to know exactly what is on their RAP sheet so they can describe their criminal record accurately, when asked. People with criminal histories usually do not know the disposition of certain charges or have forgotten some arrests. Finding out the details will enable them to present their criminal record to employers in the most accurate and straightforward way possible. They also may need to correct errors, which are common, before the employer sees them. The Legal Action Center’s guide, “Your New York State Rap Sheet,” can help providers and clients obtain and understand criminal records.

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Inform clients about Certificates of Relief from Disabilities and Certificates of Good 9


Conduct, described above. The Legal Action Center’s pamphlet, “Lowering Criminal Record Barriers – Certificates of Relief/Good Conduct and Record Sealing,” explains how to do this. 

Help clients gather evidence of rehabilitation. Useful suggestions for how to do this are in the Legal Action Center’s “How to Gather Evidence of Rehabilitation”

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Refer to “Criminal Records and Employment – Protecting Yourself from Discrimination,” another Legal Action Center publication, for more information that could be helpful to clients.

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All of these Legal Action Center resources are available at lac.org/resources/criminaljustice-resources/. Several are available in English and Spanish.

HOUSING Legal and Regulatory Barriers to Housing for Justice-Involved People in New York State People with criminal records in New York State confront a wide variety of restrictions to housing. Some of the greatest hurdles are federal statutes that apply to public and federally-assisted housing; they are described in Section I. These federal laws give the Department of Housing and Urban Development (HUD), public housing authorities (PHAs), and private landlords broad discretion to deny housing to people with criminal histories and their families.

Statewide Initiatives – Changes in the Works As noted above, in September 2015, Governor Cuomo announced several executive actions to reduce barriers to re-entry for New Yorkers with criminal convictions. Housing-related initiatives include: 

New anti-discrimination guidance for New York-financed housing. These new guidelines forbid discrimination based on a conviction alone, and require operators to make an individualized assessment of applicants, based on factors such as the seriousness of the offense, the time since the offense, the age of the applicant at the time of the crime and evidence of an applicant’s rehabilitation. The Division of Homes and Community Renewal is responsible for working with local agencies to ensure full compliance.

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Inclusion of the formerly incarcerated as a target population for supportive housing. Homeless individuals leaving incarceration will are one of the targeted populations that can be served by supportive housing projects funded by New York State.

Another noteworthy development is underway in New York City: in a two-year pilot project of the 10 Helping Justice-Involved Individuals in New York SAMHSA/Legal Action Center 2017

New York City Housing Authority, 150 newly released prisoners will be allowed to reside in public housing and will receive social services.24

How Providers Can Help When it comes to housing, those providing support to the formerly incarcerated and other justiceinvolved individuals should: Advise clients to get copies of arrest and conviction records – “RAP sheets”— whenever possible. The Legal Action Center’s guide, “Your New York State Rap Sheet,” can help providers and clients obtain and understand criminal records. 

Help clients gather evidence of rehabilitation. Useful suggestions for how to do this are in the Legal Action Center’s “How to Gather Evidence of Rehabilitation.”

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Both of these resources are available in English and Spanish at lac.org/resources/criminaljustice-resources. Check the Housing and Urban Development website to identify any special housing programs and funding that are available in New York State to support individuals with justice-involvement and/or behavioral and mental health disorders.

EDUCATION Some justice-involved individuals in New York State, like those in the rest of the country, face many hurdles to higher education, including financial restrictions and barriers to admission into colleges and universities.

Legal and Regulatory Barriers to Higher Education for Justice-Involved People in New York State 

Financial Restrictions

Individuals convicted of a crime while receiving federal financial aid for post-secondary studies are prohibited from receiving more of this aid (See Section I.) In addition, New York State bans incarcerated individuals from receiving financial assistance for in-prison college programs, including Tuition Assistance Program funds.25 Otherwise, most prospective students will be able to obtain some type of financial assistance.


 Restrictions on Admissions Public and private institutions of higher learning in New York have had free reign to refuse admissions because of applicants’ criminal histories. Moreover, questions about criminal records during the application process often discouraged justice-involved people from following through with that process. A recent study found that nearly two out of three applicants to the State University of New York (SUNY) who disclosed a felony conviction were driven out of the application process, not by purposeful denial but by the stigmatizing questions and the "gauntlet" of additional requirements.26

Initiatives –Changes in the Works 

Pell Grant Pilot

In July 2015, the U.S. Department of Education announced that it would implement a Second Chance Pell Pilot program to test new models that allow incarcerated individuals to receive Pell Grants for postsecondary education. John Jay College of Criminal Justice’s Prison to College Pipeline program was a selected pilot site. It will provide incarcerated men and women with access to public university-level education, mentorship, and community support to increase their chances of timely graduation and employment upon release.27 

Several New York State colleges have begun to “ban the box”

Removing the question about criminal history from college admission applications has become a major advocacy priority in New York and nationally. The California State University system announced its ban in May 2016 and at the same time the U.S. Department of Education released their Beyond the Box guidance on the consideration of criminal records in admissions. The City University of New York (CUNY) college system and the New York University School of Social Work have also “banned the box.” There is an on-going push to get the SUNY college system to follow suit.


1

42 U.S.C. § 1320A-7(A) (2006) ET SEQ.; 42 C.F.R. §1001.101 ET SEQ. 12 U.S.C. §1829 (FDIC INSURED BANKS); TITLE V OF THE HOUSING AND ECONOMIC RECOVERY ACT OF 2008, PUB. L. NO. 110-289 §1501, 122 STAT. 2654, 2810, THE SECURE AND FAIR ENFORCEMENT FOR MORTGAGE LICENSING ACT OF 2008 (SAFE ACT) (MORTGAGE LENDING). 3 18 U.S.C. §1033(E). 4 See LEGAL ACTION CENTER, OCCUPATIONAL LICENSING SURVEY, (2006), HTTP://LAC.ORG/WPCONTENT/UPLOADS/2014/12/OCCUPATIONAL-LICENSING-SURVEY-2006.PDF. 5 10 CRR-NY 402.7(A)(2), AVAILABLE AT HTTP://W3.HEALTH.STATE.NY.US/DBSPACE/NYCRR10.NSF/11FB5C7998A73BCC852565A1004E9F87/82AC C944DDAE46F2852571E600585043?OPENDOCUMENT. 6 10 CRR-NY 402.7(B). 7 9 NY CODE OF RULES AND REGULATIONS PART 6050.1 8 N.Y. LABOR LAW §201-F. 9 See NEW YORK STATE UNIFIED COURT SYSTEM, CRIMINAL HISTORY RECORD SEARCH, available at https://www.nycourts.gov/apps/chrs/. 10 N.Y. CORRECTION LAW (ARTICLE 23-A), §§ 750 – 755. 11 ID. 12 NEW YORK EXECUTIVE LAW § 296(15); NYC HUMAN RIGHTS LAW SECTION 8-107(9)(5). 13 N.Y.C. ADMIN. CODE §§ 8-102(29), 8-107(9)(D), (24); LOCAL LAW NO. 37 (2015). 14 NATIONAL EMPLOYMENT LAW PROJECT. Ban The Box: U.S. Cities, Counties, And States Adopt Fair Hiring Policies,HTTP://WWW.NELP.ORG/PUBLICATION/BAN-THE-BOX-FAIR-CHANCE-HIRING-STATE-ANDLOCAL-GUIDE/ (LAST VISITED ON JUN. 28, 2016). 15 N.Y. CRIMINAL PROCEDURE LAW § 160.50. 16 N.Y.S. CRIMINAL PROCEDURE LAW § 160.55. 17 N.Y. CRIMINAL PROCEDURE LAW § 160.58. 18 N.Y. CRIMINAL PROCEDURE LAW § 440.10(1)(I). 19 N.Y. CRIMINAL PROCEDURE LAW § 720.35. 20 N.Y. FAM. CT. ACT § 381.3. 21 See RAISE THE AGE/NEW YORK SUMMARY available at http://raisetheageny.com/wpcontent/uploads/2017/05/rta.billsummary.finalMay-2017.pdf. 22 N.Y. GEN. BUS. LAW §§ 380-380-V. 23 ARTICLE 23 OF THE NEW YORK CORRECTION LAW §§ 700-706. 24 To be eligible, applicants for this program would have to be related to the apartment’s leaseholder, including by domestic partnership. They must agree to work with case managers to find employment, blend into the household and undergo drug treatment or attend addiction support groups if necessary before the placement becomes permanent. Public housing officials must still comply with HUD’s lifetime bans on some registered sex offenders and on people convicted of methamphetamine production on federally subsidized property. 25 EDUCATION FROM THE INSIDE OUT COALITION. Policy Brief: Restoration of Tuition Assistance Program Eligibility (2013), http://www.eiocoalition.org/files/EIO_TAP-Grants_2013-Policy-Brief_V4.pdf. 26 See CENTER FOR COMMUNITY ALTERNATIVES, Boxed Out: Criminal History Screening and College Application Attrition, (2015), http://communityalternatives.org/pdf/publications/BoxedOut_FullReport.pdf. 27 See JOHN JAY COLLEGE OF CRIMINAL JUSTICE, John Jay College Selected as Second chance Pell Pilot Program Site for Incarcerated Students, (Jun. 28, 2016), http://www.jjay.cuny.edu/news/john-jay-college-selected-second-chancepell-pilot-program-site-incarcerated-students. 2
