In New York state alone, there are nearly two and a half million people living with criminal records, or just over 10% of the entire population. For these individuals, routine parts of life, from finding a job or applying to be a tenant in an apartment become fraught with difficulties.
Even in a state with a "ban the box" law that requires delaying background checks, these barriers remain. Employers and others may still choose to pass over them once they see their criminal record. Advocates for criminal justice reform have since turned their attention to another tool to expand opportunities and foster a healthier society with lower recidivism: record expungement or sealing.
In an expungement, authorities remove a conviction from an individual's record permanently, as if it never happened. When a record goes under seal, it continues to exist, but the number of people who can see that information becomes extremely limited; usually only courts and law enforcement can view sealed records. Employers won't be able to see sealed records, and if they discover information about a conviction that subsequently went under seal, they cannot consider it.
Advocates in New York see expanding access to these services as essential for creating a truly fair chance for ex-offenders. The process of sealing one's records is often opaque, may require an extensive application, and could require court approval. All these steps take time and cost money that many people simply do not have. The state's Clean Slate Act aimed to solve that problem by fully automating the process of sealing certain records after an individual completes their sentence.
However, the bill has not advanced to the governor's desk in the 2021 or 2022 legislative sessions, despite agreements to pass the law and support from major businesses. Its fate remains uncertain, though there remains a chance the bill could see another revival in the 2023 session.
For employers, this means the status quo remains in place. You must still delay a criminal background check until after making a conditional job offer, but it is then your prerogative as to how you interpret and use the results. Even so, there are some opportunities here—especially for companies looking to expand their talent pools.
Recent surveys have revealed that many people feel safe working alongside colleagues with past records, and even more people want to work for employers who adopt the "fair chance" attitude. Some businesses may want to assist applicants in exploring opportunities for record sealing or expungement by spotlighting New York's procedures as a part of their application process. Offering such resources can reflect positively on your business and potentially boost the number of qualified applications you receive.
Going forward, employers in New York should also carefully track the progress of the Clean Slate Act and any potential revival in future legislative sessions. Though the bill would not hold employers liable for actions occurring after hiring an individual with a sealed record, any change to the law means changes to compliance requirements. Monitor this situation for future changes and be ready to adapt if, and when necessary.
About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments