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

OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDSLEGAL ACTION CENTER2013

1

WHO’S THE LEGAL ACTION CENTER? ANTI-DISCRIMINTATION &

PRIVACY WORK:

People with criminal records, alcohol/drug histories, and/or HIV/AIDS

Legal services & litigation

Advice to providers

Trainings

Policy advocacy & research2

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

FREE LEGAL SERVICESIncluding –

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

HAVE QUESTIONS? 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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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.

5

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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

6

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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 interest7

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

TODAY’S AGENDA (CONT.)Today’s training has 4 Parts (cont.):

Part Four – Housing

• Background checks and FCRA

• NYCHA & Section 8 Housing

o Section 8 is now called Housing Choice. Today’s presentation will use the term Section 8.

• Other government funded housing (brief)

• Fair Housing Act (brief)

8

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

TODAY’S MATERIALS 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)

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

http://www.lac.org/

http://vimeo.com/14365413

http://vimeo.com/14365413

CRIMINAL RECORD HISTORY (“CRH”)

PART ONE

10

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

CRH: CRIMINAL RECORDS

The Legal Action Center . . .

Fingerprints eligible clients;

Provides a workshop about:

Understanding criminal history info;

Collateral consequences; and

Certificates of Rehabilitation11

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

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

12

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

CRH: WHERE IS IT? WHO MAINTAINS IT?

Two Questions:

1. Where is one’s criminal record history located?

AND

2. Who maintains it?

13

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13


(CONT.)In New York State . . .

1. Division of Criminal Justice Services (“DCJS”)

• Official “RAP” Sheet

2. Office of Court Administration (“OCA”)

• OCA Record

14

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13


(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) L

eg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

15


(CONT.) A NYS DCJS RAP Sheet is:

official

fingerprint based

One must have statutory authority to obtain a RAP sheet.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

16


(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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

17


(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 L

eg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

18

CRH: BACKGROUND CHECK SOURCES – EMPLOYERS

Where is a potential employer

likely to get information from?

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

19

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

20

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

21

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

22

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; and/or

• If they don’t remember, more likely to inadvertently provide incorrect information on job or housing application. They may be denied a job or housing for lying.

There may be MISTAKES on the RAP sheet that can be corrected.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

23

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

24

CRH: RAP SHEETS (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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

25

POLL #1

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

26

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. Yesb. No

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

27

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

28

CRH: RAP SHEET ERRORS & CORRECTIONS

Our data shows almost HALF of RAP sheets have apparent errors or information that could be sealed.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

29


(CONT.) What types of errors occur

on RAP sheets?

What can be done to correct them?

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

30


(CONT.)

Let’s talk about 5 typical RAP sheet errors and what can be done about them.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

31


(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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

32


(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 DA’s office stating that they declined to prosecute.

If DA’s office says that they never got case from the police, contact LAC.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

33


(CONT.)3. 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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

34


(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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

35


(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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

36

CRH: RAP SHEETS – SEALING

What does it mean if a case is sealed?

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

37

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 § 160.50.

There are exceptions. For example, law enforcement can see the cases when considering applications for employment or gun licenses.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

38

CRH: RAP SHEETS – SEALING (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).

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

39

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. § 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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

40


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

41


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

42


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

43

POLL #2

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

44


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.

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

45


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.

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

46


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.

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

47

CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF MATTER

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

48

CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF PROBLEM

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

49

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

50

CRH: PREPARING FOR COMMERCIAL BACKGROUND CHECKS

How can clients learn what may appear on commercial background checks?

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

51

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, 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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

52

EVIDENCE OF REHABILITATION

PART TWO

53

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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?

1. Collect evidence of rehabilitation.2. Apply for a Certificate of Relief

from Disabilities (“CRD”) or Certificate of Good Conduct (“CGC”).

Leg

al

Acti

on

Cen

ter

– M

ay

7,

20

13

54

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?

Leg

al

Acti

on

Cen

ter

– M

ay

7,

20

13

55

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, 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.

Leg

al

Acti

on

Cen

ter

– M

ay

7,

20

13

56

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.

Leg

al

Acti

on

Cen

ter

– M

ay

7,

20

13

57

EVID. OF REHAB: CRDS & CGCS

Certificates of Relief from Disability (CRDs)

&Certificates of Good

Conduct (CGCs)

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

58

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)

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

59

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

60

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

61

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

62

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 :

• 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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

63

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 :

• 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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

64

CRIMINAL-RECORDS BASED EMPLOYMENT DISCRIMINATION

PART THREE

65

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

EMP. DISCRIM: LAWS?

Are there any laws that help protect job applicants and employees who have criminal records?

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

66

EMP. DISCRIM: LAWS? (CONT.)

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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.

EMP. DISCRIM: FCRAS

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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.

EMP. DISCRIM: FCRAS (CONT.)

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

69

What if the report includes mistakes?

Applicant has the right to insist that the credit reporting agency:

• Corrects the reportAND

• Sends the employer the corrected information.

EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.)

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

70

Let’s talk about 3 responsibilities of employers under both FCRAs (federal and state)


Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

71

1. Employer may only get and use background report for “employment purposes,” including:

• Hiring

• Promotion

• Reassignment

• Retention


Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

72

2. Must get applicant’s (or employee’s) permission in writing before ordering a background check.


Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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.


Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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


Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

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

POLL #3

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

76


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

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

77


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.

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

78

EMP. DISCRIM: LAWS PROTECTING AGAINST DISCRIM.

1. Federal Law2. New York State3. New York City

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

79

EMP. DISCRIM: FED. ANTI-DISCRIM. LAWS

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

80

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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

81

EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)

What is Correction Law Article 23-A?

It’s 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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

82


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).

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

83


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. L

eg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

84


Applicant or current employee may not be denied job or license or acted adversely upon because of conviction records unless:

1. There’s a direct relationship between conviction and job or license sought, or

2. Hiring or licensure would create an unreasonable risk to property or public or individual safety.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

85

NYS Correction Law § 753

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 person’s fitness or ability to perform duties;

4. Time elapsed since the criminal offense;

(Next Slide . . .)

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

86



8 factors (cont.):

5. Person’s 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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

87


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

88


POLL #4

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

89


POLL:

An application asks, “Have you ever been convicted of any offense?” Is this a legal question?

a. Yesb. No

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

90


A NSWER:

b. No. Although the question only asks about convictions, it does not exclude sealed convictions.

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

91

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.”

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

92


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

93



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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

94


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).

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

95

EMP. DISCRIM: OTHER NY LAWS

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

96

EMP. DISCRIM: OTHER NY LAWS (CONT.)

HOUSING

PART FOUR97

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

HOUSING: GENERALLY

Is it legal to deny someone housing because of a criminal

record?

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

98

HOUSING: GENERALLY (CONT.)

There is NO federal or New York State law that expressly prohibits housing discrimination based on a criminal record.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

99

HOUSING: BACKGROUND CHECKS

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

100

HOUSING: BACKGROUND CHECKS (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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

101

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

102

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.”

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

103


As permitted by federal law, NYCHA’s own policies disqualify people who NYCHA believes threaten the health and safety of NYCHA residents and property.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

104


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)

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

105


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

106


Waiting Periods for Felonies:

Class A, B, or C: 6 years

Class D or E: 5 years

. . . and no further convictions or pending charges

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

107


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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

108


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

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

109

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

110

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

111

HOUSING: NYCHA & SECTION 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;

and6. Participation in counseling or

social service programs designed to correct the offending behavior.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

112


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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

113

http://www.lac.org/

HOUSING: NYCHA & SECTION 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_Section_8_or_Public_Housing.pdf

It is a big file, so it may take some time to download.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

114

POLL #5

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

115


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 they’re out of luck b. Wait 2 yearsc. Request a hearing

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

116

HOUSING: NYCHA & SECTION 8ANSWER:

C. Request a hearing! Ineligibility determinations can be overcome.

Leg

al

Act

ion

Cen

ter

- M

ay

7,

20

13

117

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

118

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.

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

119

HAVE QUESTIONS?

Call the Legal Action Center

212-243-1313

Leg

al

Acti

on

Cen

ter

- M

ay

7,

20

13

120

Thank you!

This concludes the training.

And thanks to the AIDS Institute, New York State Department of Health.

121

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

Documents

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