Last November governor, Kathy Hochul officially put her signature to legislation that saw New York State become the latest state to adopt so-called ‘Clean Slate’ law – the expungement of the criminal records for eligible individuals, allowing them to find jobs and re-integrate into society without employers considering – and potentially discriminating against – a previous misdemeanor.
Under the terms of the legislation, individuals with eligible misdemeanor convictions will have their records automatically sealed three years after release, while those with certain felony convictions will have their records sealed eight years after release, provided they have no subsequent criminal charges. [Those who have received a life sentence, or who have been convicted of a class A felony – like murder – are ineligible still].
Using the mantra that having a job is the best way to prevent crime, the addition of New York now means there are a total of 12 states that have passed laws that meet the Clean State Initiative’s criteria for Clean Slate legislation. These states are Pennsylvania (2018); Utah (2019); New Jersey (2019); Michigan (2020); Connecticut (2020); Delaware (2021); Virginia (2021); Oklahoma (2022); Colorado (2022); California (2022); Minnesota (2023) and New York (2023).
The purpose of all clean slate law is to prevent discrimination against individuals with certain criminal histories, and it reinforces New York State’s existing commitment to guarding against such discrimination in employment opportunities by going much further than its existing Fair Chance Act, or “ban the box law,” amended in July 2021. This regulation already restricted employers from taking adverse employment action against job applicants based on applicants’ arrest or criminal conviction histories.
What employers need to know
In New York itself, the clean slate law doesn’t formerly come into effect until November 16, 2024.
But according to Angela Preston, senior vice president and counsel for corporate ethics and compliance at Sterling (a provider of screening, background checks and other human resources information services for businesses), the six month window HR professionals have shouldn’t be wasted.
And it’s not just New York state professionals that need to take notice of these laws. For not only are new laws only just becoming binding that employers should know about (Connecticut’s law only actually came into effect from this January – wiping away the 173,000 convictions from the records of more than 80,000 people), but additions are continually being made too.
As recently as last December, for example, Pennsylvania added further provisions to its own existing law – including expansions for sealing details of certain low-level, non-violent felony drug crimes after 10 years without another misdemeanor or felony conviction. The new provisions also reduce the waiting period for sealing misdemeanor convictions to seven years, and to five years for summary convictions.
As a result of these new additions and extensions Preston argues employers not only have to keep themselves continually updated, but the impacts of these laws could now have a significant impact on employer background checks and hiring practices.
The result, she says, is that HR departments need to start to look at all their practices now.
To explain all, she spoke exclusively to TLNT:
Q: Firstly, how does the Clean Slate legislation differ from ‘ban the box’ legislation?
A: Fair chance or ban the box legislation was the first wave of anti-discrimination laws designed to give people a fairer chance in the hiring process. Ban the box literally took the box-ticking bit off a form, which previously asked people to confirm if they’d had a criminal conviction. Clean slate laws now take this to the next stage, and literally wipe a person’s slate clean, removing their criminal history altogether. Some laws differ from state to state though – for instance, some classes of crimes are automatically removed; while for others people have to apply for their crimes to be removed. This alone is a reason for HR to understand which law applies to them, and how.
Q: What are the other broader considerations HR departments need to understand?
A: “Because there is no federal clean sate legislation, what’s been happening, is that states have individually taken on the mantel of doing this, meaning there is somewhat of a patchwork of legislation floating around that HR has to get to grips with. For firms with offices in many different states, just knowing what ones have laws that might affect them is the first hurdle, and then it’s about understanding how hiring processes could then be impacted.
Q: How might hiring be impacted specifically?
A: “This is law that’s intended to remove direct or indirect discrimination in the hiring process. Although the Equal Employment Opportunity Commission (EEOC), already says that employers cannot discriminate according to someone’s criminal record, this is a further level of protection, and so any employer’s hiring processes must at least be compliant with and match the current requirements of state law.
But there are issues employers will certainly need to be aware of. One of the things employers will definitely need to do is update their background screening processes and then take counsel if an irregularity is found. For instance, it could still be highly likely that even though an official criminal record will have been expunged, evidence of someone’s criminal past could still surface when a company does social media or other online background checks. If someone’s name comes up in this context, there is a very real need for employers to determine what they do with that information. They must do their diligence over what this means for the impact of the law.”
Q: Hare laws restricting AI’s use in recruitment also linked to this – as AI would arguably be able to surface information available online that still exists about a person’s criminal past?
A: “AI is yet another area impacting this. New York has also been a trailblazer in this area too, requiring that any tech used is tested for bias in hiring – which could plausibly include someone’s criminal history. The law requires bias testing to have occurred.”
Q: Some might find it ironic that tech providers themselves are unable to 100% determine if their AI removes bias. Surely it’s impossible to claim ‘all’ bias has been removed, isn’t it?
A: “This is certainly a developing area, and the EEOC is itself also looking into AI tools. I’m not a tech expert, but what I expect is that as long as a company is evidencing some use of testing methodology, this will suffice, although there will probably be developments around accuracy of this testing to come. The devil will no doubt be in the detail.”
Q: But in the meantime, searches on employees will now increasingly be regardless of people’s criminal history?
A: “Yes. More states will doubtless be doing similar clean state legislation. The message is for HR to get on top of anything that impacts them now, or could do so in the future.”
New York’s Clean Slate Act:
- The Clean Slate Act, the law will automatically seal criminal records for about 2.3 million New Yorkers three years after sentencing for a misdemeanor and eight years after a person is released from prison for a felony conviction.
- It does not apply to class A felonies or crimes that required a person to register as a sex offender.
- A person’s criminal records will be sealed after the required time if they are not on probation or parole, and have no other pending charges.