Transcript OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL …

OVERCOMING
BARRIERS FOR
PEOPLE WITH
CRIMINAL RECORDS
LEGAL ACTION CENTER
2014
1
If you haven’t officially registered with the NYS Department of
Health AIDS Institute, http://www.hivtrainingny.org/ please sign
up!
Get credit for your attendance!
Legal Action Center – May 20, 2014
Before you begin –
Have you registered?
Contact Vanessa Severino at [email protected]
2
WHO’S THE LEGAL ACTION
CENTER?
 People with criminal records, alcohol/drug
histories, and/or HIV/AIDS
 Legal services & litigation
 Advice to providers
Legal Action Center – May 20, 2014
 ANTI-DISCRIMINATION & PRIVACY
WORK:
 Trainings
 Policy advocacy & research
3
FREE LEGAL SERVICES
Including –
 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
Legal Action Center – May 20, 2014
 HIV testing & confidentiality
4
HAVE QUESTIONS?
• 212-243-1313
• Toll-Free: (800) 223-4044
 Clients: ask for “paralegal on call”
• 9 a.m. – 5 p.m.
Legal Action Center – May 20, 2014
 Call the Legal Action Center
 Providers: ask for “attorney on call”
• 1 p.m. – 5 p.m.
5
 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.
Legal Action Center – May 20, 2014
THIS TRAINING . . .
6
TODAY’S AGENDA
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
Legal Action Center – May 20, 2014
Today’s training has 4 Parts:
7
TODAY’S AGENDA (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
Legal Action Center – May 20, 2014
Today’s training has 4 Parts (cont.):
8
TODAY’S AGENDA (CONT.)
Today’s training has 4 Parts (cont.):
• 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.
Legal Action Center – May 20, 2014
Part Four – Housing
• Other government funded housing (brief)
• Fair Housing Act (brief)
9
TODAY’S MATERIALS
 LAC Booklets:
 Criminal Records and Employment
 Lowering Criminal Records Barriers
 Changes to the Rockefeller Drug Laws
LAC link:
http://lac.org/index.php/lac/category/free_publications_library
 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
Legal Action Center – May 20, 2014
 Your New York State RAP Sheet
10
PART ONE
Legal Action Center – May 20, 2014
CRIMINAL RECORD
HISTORY (“CRH”)
11
CRH: CRIMINAL RECORDS
 Fingerprints eligible clients;
 Provides a workshop about:
 Understanding criminal history info;
 Collateral consequences; and
 Certificates of Rehabilitation
Legal Action Center – May 20, 2014
The Legal Action Center . . .
12
CRH: CRIMINAL RECORDS (CONT.)
 Provides the client with a RAP sheet;
 Summarizes RAP sheet; and
 May answer questions and help correct
errors on the RAP sheet
Legal Action Center – May 20, 2014
Legal Action Center also . . .
13
CRH: WHERE IS IT? WHO MAINTAINS IT?
1. Where is one’s criminal record history
located?
AND
2. Who maintains it?
Legal Action Center – May 20, 2014
Two Questions:
14
CRH: WHERE IS IT? WHO MAINTAINS IT?
(CONT.)
In New York State . . .
•
Official “RAP” Sheet
2. Office of Court Administration (“OCA”)
•
OCA Record
Legal Action Center – May 20, 2014
1. Division of Criminal Justice Services (“DCJS”)
15
 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 20, 2014
CRH: WHERE IS IT? WHO MAINTAINS IT?
(CONT.)
16
CRH: WHERE IS IT? WHO MAINTAINS IT?
(CONT.)
 official
 fingerprint based
 One must have statutory authority to obtain
a RAP sheet.
Legal Action Center – May 20, 2014
 A NYS DCJS RAP Sheet is:
17
CRH: WHERE IS IT? WHO MAINTAINS IT?
(CONT.)
 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 20, 2014
 An OCA report is NOT a RAP sheet!
18
CRH: WHERE IS IT? WHO MAINTAINS IT?
(CONT.)
 FBI also maintains national RAP sheets
 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 20, 2014
 Fingerprint-based
19
Where is a potential employer
likely to get information from?
Legal Action Center – May 20, 2014
CRH: BACKGROUND CHECK SOURCES – EMPLOYERS
20
CRH: BACKGROUND CHECK SOURCES – EMPLOYERS
(CONT.)
 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 20, 2014
Where do NYS and NYC government employers obtain
criminal record information?
21
CRH: BACKGROUND CHECK SOURCES – EMPLOYERS
(CONT.)
 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 20, 2014
Where do private employers typically get their information
from?
 Some private companies maintain their own databases
22
 Some local law enforcement agencies sell information
CRH: BACKGROUND CHECK SOURCES – HOUSING
Landlords may get their information from:
 NYS OCA
 NYS Department of Corrections “inmate lookup”
 This is NOT an accurate source of criminal record
information
Legal Action Center – May 20, 2014
 Commercial background check companies
23
CRH: RAP SHEETS
 Many people DO NOT accurately remember their
criminal record.
•
So likely to provide incorrect information on job or
housing application. 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 20, 2014
 Every person with a criminal history should obtain a
copy of his/her most recent RAP sheet because:
24
 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 20, 2014
CRH: RAP SHEETS (CONT.)
25
CRH: RAP SHEETS (CONT.)
 Cases that were terminated favorably and
sealed (e.g., dismissals, declined to prosecute,
etc.)
 Sealed violation-level convictions
Legal Action Center – May 20, 2014
 Employer RAP Sheets include less information.
They DO NOT include:
26
Legal Action Center – May 20, 2014
POLL #1
27
CRH: RAP SHEETS (CONT.)
• 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 20, 2014
POLL:
28
CRH: RAP SHEETS (CONT.)
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 20, 2014
ANSWER:
29
Our data shows more than 1/3 of
RAP sheets have apparent errors or
information that could be sealed.
Legal Action Center – May 20, 2014
CRH: RAP SHEET ERRORS & CORRECTIONS
30
 What types of errors occur on RAP
sheets?
 What can be done to correct them?
Legal Action Center – May 20, 2014
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
31
Let’s talk about 5 typical RAP sheet
errors and what can be done about
them.
Legal Action Center – May 20, 2014
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
32
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
 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 20, 2014
1. Missing Disposition – Entry shows a case was
filed but no resolution.
33
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.
Legal Action Center – May 20, 2014
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
34
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
 Case is reported (including arrest charges) that
usually should not appear
 Client can see if court records indicate case
should already be sealed.
Legal Action Center – May 20, 2014
3. Cases Terminated in Client’s Favor Are Not
Sealed
 If not, can try to file motion to seal.
35
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
 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 20, 2014
4. Violation-Level Convictions Are Not Sealed
36
CRH: RAP SHEET ERRORS & CORRECTIONS
(CONT.)
 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 20, 2014
5. Warrants that Were (or Should Have Been)
Vacated Still Appear on RAP Sheet
37
What does it mean if a case is sealed?
Legal Action Center – May 20, 2014
CRH: RAP SHEETS – SEALING
38
 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.
Legal Action Center – May 20, 2014
CRH: RAP SHEETS – SEALING (CONT.)
39
CRH: RAP SHEETS – SEALING (CONT.)
 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 20, 2014
 Violation-level convictions are sealed “at the state
level” and not at the court level, per C.P.L. § 160.55
40
 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 20, 2014
CRH: RAP SHEETS – SEALING (CONT.)
41
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 20, 2014
CRH: RAP SHEETS – SEALING (CONT.)
42
 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 20, 2014
CRH: RAP SHEETS – SEALING (CONT.)
43
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 20, 2014
CRH: RAP SHEETS – SEALING (CONT.)
44
Legal Action Center – May 20, 2014
POLL #2
45
CRH: RAP SHEETS – SEALING (CONT.)
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 20, 2014
POLL:
46
CRH: RAP SHEETS – SEALING (CONT.)
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 20, 2014
Possible Answers:
47
CRH: RAP SHEETS – SEALING (CONT.)
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.
Legal Action Center – May 20, 2014
ANSWER:
REALITY:
• It makes no difference what the sentence was. Unsealed
criminal convictions, both misdemeanors and felonies,
are reported.
48
CRH: CRIMINAL BACKGROUND CHECKS – SCOPE
OF MATTER
 According to a 2010 SHRM study, approximately
92% of employers conduct criminal background
checks for some potential applicants, and 73% of
employers conduct criminal background check on
ALL potential applicants.
 Many federal and state government agencies
require background checks.
Legal Action Center – May 20, 2014
 Advances in technology have created easy access
to criminal records.
49
CRH: CRIMINAL BACKGROUND CHECKS – SCOPE
OF PROBLEM
 Use unreliable sources of information
 Do not consult more than one record database
 Use old information/Do not update information
 Do not get enough identification information, so
report information about the wrong people
Legal Action Center – May 20, 2014
 Credit Reporting Agencies often misreport
criminal conviction information because they:
 Cut and paste without checking their work
 Mislabel information
50
CRH: CRIMINAL BACKGROUND CHECKS – SCOPE
OF PROBLEM (CONT.)
 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 20, 2014
 REMEMBER – official criminal records also
may have mistakes or too much info, such as:
51
How can clients learn what may
appear on commercial background
checks?
Legal Action Center – May 20, 2014
CRH: PREPARING FOR COMMERCIAL
BACKGROUND CHECKS
52
 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.
• There are 500+ consumer reporting agencies
Legal Action Center – May 20, 2014
CRH: PREPARING FOR COMMERCIAL
BACKGROUND CHECKS (CONT.)
53
PART TWO
Legal Action Center – May 20, 2014
EVIDENCE OF
REHABILITATION
54
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”).
• If someone is undocumented, applying for CRD or
CGC may not be wise.
Legal Action Center – May 20, 2014
EVID. OF REHAB: HOW TO SHOW IT?
55
EVID. OF REHAB: HOW TO SHOW IT?
 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 20, 2014
We’ll Cover . . .
56
EVID. OF REHAB: HOW TO SHOW IT? (CONT.)
 Educational efforts – school or training programs
 Jobs or volunteer work
 Recommendation letters – from jobs, school or
training, service providers or personal contacts
 Programs, e.g., 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 20, 2014
 Evidence of rehabilitation can include almost any positive
activities.
57
EVID. OF REHAB: HOW TO SHOW IT? (CONT.)
 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 20, 2014
 Collect evidence of rehabilitation in advance of
applications because may need it on short notice.
58
Certificates of Relief from
Disability (CRDs)
&
Certificates of Good Conduct
(CGCs)
Legal Action Center – May 20, 2014
EVID. OF REHAB: CRDS & CGCS
59
EVID. OF REHAB: CRDS & CGCS
 Certificates of Relief or Good Conduct Provide:
 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.”
Legal Action Center – May 20, 2014
 Evidence of rehabilitation
 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)
60
EVID. OF REHAB: CRDS
 Felony conviction on no more than 1 date.
 Any number of misdemeanors.
 Certificate only applies to conviction for which
it was granted.
Legal Action Center – May 20, 2014
 Eligibility for a CRD:
 There is no waiting period before applying.
61
EVID. OF REHAB: CRDS (CONT.)
 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 20, 2014
 To Apply for a CRD:
62
EVID. OF REHAB: CGCS
 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 20, 2014
 Eligibility for a CGC:
63
EVID. OF REHAB: CGCS (CONT.)
 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 20, 2014
 To Apply for a CGC:
64
EVID. OF REHAB: CGCS (CONT.)
 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 20, 2014
 To Apply for a CGC:
65
PART THREE
Legal Action Center – May 20, 2014
CRIMINAL-RECORDS BASED
EMPLOYMENT
DISCRIMINATION
66
EMP. DISCRIM: BACKDROP
Mass Incarceration
 Nearly 65 million adults (almost 1 in 4) in the
United States has some sort of criminal record
(NELP, 65 Million Need Not Apply, March 2011)
 Use of criminal background check information
disproportionately affects people of color
Legal Action Center – May 20, 2014

67
Are there any laws that help protect
job applicants and employees who
have criminal records?
Legal Action Center – May 20, 2014
EMP. DISCRIM: LAWS?
68
EMP. DISCRIM: LAWS? (CONT.)
 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.
Legal Action Center – May 20, 2014
YES!!!
69
EMP. DISCRIM: FCRAS
Under NYS law,
 Cannot include information about violations
(sealed or unsealed).
 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.
Legal Action Center – May 20, 2014
 What criminal record information can be
included in a commercial background report?
70
Let’s talk about 3 responsibilities of
employers under both FCRAs (federal
and state)
Legal Action Center – May 20, 2014
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
71
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
• Hiring
• Promotion
• Reassignment
Legal Action Center – May 20, 2014
1. Employer may only get and use background
report for “employment purposes,” including:
• Retention
72
2. Must get applicant’s (or employee’s)
permission in writing before ordering a
background check.
Legal Action Center – May 20, 2014
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
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.
Legal Action Center – May 20, 2014
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
74
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
What is an adverse action?
• Denying the job
• Terminating an employee
• Deciding not to promote an employee
Legal Action Center – May 20, 2014
 Includes:
• Demoting an employee
• Reassigning an employee
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
 Sending out report and denial at same
time does not comply with the law
Legal Action Center – May 20, 2014
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
76
EMP. DISCRIM: FCRAS (CONT.)
 Applicant has the right to insist that the credit
reporting agency:
•
Corrects the report
AND
•
Sends the employer the corrected information
Legal Action Center – May 20, 2014
 What if the report includes mistakes?
77
Legal Action Center – May 20, 2014
POLL #3
78
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
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?
Legal Action Center – May 20, 2014
POLL:
a. Yes
b. No
79
EMP. DISCRIM: EMPLOYER RESPONSIBILITIES
UNDER BOTH FCRAS (CONT.)
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.
Legal Action Center – May 20, 2014
ANSWER:
80
1. Federal Law
2. New York State
3. New York City
Legal Action Center – May 20, 2014
EMP. DISCRIM: LAWS PROTECTING AGAINST
DISCRIM.
81
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 whether to hire or
retain employees.
Legal Action Center – May 20, 2014
EMP. DISCRIM: FED. ANTI-DISCRIM. LAWS
82
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS
 NYS Human Rights Law
 NYC Human Rights Law
 Negligent Hiring Law
 Employer Education Act
Legal Action Center – May 20, 2014
 Corrections Law Article 23-A
83
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
 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.
Legal Action Center – May 20, 2014
 What is Correction Law Article 23-A?
84
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).
Legal Action Center – May 20, 2014
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
85
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
 It does not apply to the federal government or
non-New York government employers, e.g., Port
Authority.
Legal Action Center – May 20, 2014
 Article 23-A applies to public and most private
New York employers and licensing agencies.
86
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.
Legal Action Center – May 20, 2014
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
87
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
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;
Legal Action Center – May 20, 2014
NYS Correction Law § 753
3. Bearing of the criminal offense on person’s fitness or ability to
perform duties;
88
4. Time elapsed since the criminal offense;
(Next Slide . . .)
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
8 factors (cont.):
5.
6.
7.
8.
Person’s age at the time of the criminal offense;
Seriousness of the offense(s);
Any information produced by applicant to show rehabilitation; and
The legitimate interest of the public employer in protecting
property, and the safety and welfare of specific individuals or the
general public.
Legal Action Center – May 20, 2014
NYS Correction Law § 753
NOTE: CRDs or CGCs create a presumption of rehabilitation
89
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
NYS & NYC Human Rights Laws
Most employers . . .
 may not ask about youthful offender adjudications
 may not ask about sealed violation convictions
 may not ask about 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 20, 2014
 may not ask about arrests that did not lead to conviction
90
Legal Action Center – May 20, 2014
POLL #4
91
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
An application asks, “Have you ever been
convicted of any offense?” Is this a legal question?
a. Yes
b. No
Legal Action Center – May 20, 2014
POLL:
92
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
b. No. Although the question only asks about
convictions, it does not exclude sealed convictions.
Legal Action Center – May 20, 2014
A NSWER:
93
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
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.”
Legal Action Center – May 20, 2014
How do these laws work in practice?
94
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
 Employer must evaluate each job applicant
individually, considering more than the criminal record.
Legal Action Center – May 20, 2014
Under New York law, what must an employer do when
considering a job applicant with a criminal record?
95
EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)
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 20, 2014
NYS Correction Law § 754
96
EMP. DISCRIM: POTENTIAL REMEDIES
• NY State Division of Human Rights
• 1 year Statute of Limitation (SOL) – Complaint should be filed within one
year after the alleged unlawful discriminatory practice
• NYC Commission on Human Rights
• 1 year SOL - Complaint should be filed within one year of the last alleged
act of discrimination
• EEOC
- 300 days from the day the discrimination took place
- There are nuances relating to an EEOC claim
OR
• File a Lawsuit Directly Asserting NYS/NYC anti-discrimination claims
already discussed
- 3 year SOL
Note: Can only assert Title VII claim (federal claim) if you go through
administrative process
Legal Action Center – May 20, 2014
 Informal Resolution/Negotiation
OR
 File A Complaint/Charge with an Administrative Agency
97
EMP. DISCRIM: OTHER NY LAWS
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).
Legal Action Center – May 20, 2014
NYS Negligent Hiring Law (2008)
98
EMP. DISCRIM: OTHER NY LAWS (CONT.)
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 20, 2014
NYS “Employer Education Act” (2008)
99
Legal Action Center – May 20, 2014
HOUSING
PART FOUR
100
HOUSING: GENERALLY
Legal Action Center – May 20, 2014
Is it legal to deny someone housing
because of a criminal record?
101
There is NO federal or New York State law that
expressly prohibits housing discrimination
based on a criminal record.
Legal Action Center – May 20, 2014
HOUSING: GENERALLY (CONT.)
102
HOUSING: BACKGROUND CHECKS
 All landlords must tell an applicant if they are going to
get his/her criminal background report through a
background check company.
 Landlords also must tell the housing applicant if they
deny housing because of the background check and give
the applicant contact information for the background
check company.
Legal Action Center – May 20, 2014
Fair Credit Reporting Acts (FCRAs) create some requirements.
103
HOUSING: BACKGROUND CHECKS (CONT.)
 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 can 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.
Legal Action Center – May 20, 2014
FCRA requirements for consumer reporting agencies:
104
 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 20, 2014
HOUSING: BACKGROUND CHECKS (CONT.)
105
HOUSING: NEW YORK CITY HOUSING
AUTHORITY (“NYCHA”)
 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 20, 2014
Eligibility for Admission
106
 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.”
 Following this, NYCHA’s policies disqualify
people who it determines “threaten the health and
safety of NYCHA residents and property.”
Legal Action Center – May 20, 2014
HOUSING: NYCHA (CONT.)
107
HOUSING: NYCHA (CONT.)
 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 20, 2014
Whose criminal record affects eligibility for
public housing?
108
HOUSING: NYCHA (CONT.)
 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 20, 2014
Which conviction can potentially disqualify people from
NYCHA?
109
HOUSING: NYCHA (CONT.)
 Class A, B, or C: 6 years
 Class D or E: 5 years
. . . and no further convictions or pending
charges
Legal Action Center – May 20, 2014
Waiting Periods for Felonies:
110
HOUSING: NYCHA (CONT.)
 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:
Legal Action Center – May 20, 2014
Waiting Periods for Misdemeanors:
• 3 years – if 1 or 2 within last 10 years
• 4 years – if 3 or more within last 10 years
111
HOUSING: NYCHA (CONT.)
 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 20, 2014
Waiting Periods for Violations or DWI
Infractions:
112
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 20, 2014
HOUSING: SECTION 8
113
HOUSING: NYCHA & SECTION 8
 Can qualify if show rehabilitation and
other evidence why person is not a threat to
health/safety of residents.
Legal Action Center – May 20, 2014
 Even if a household member has a
conviction that falls within the bar . . .
114
 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 20, 2014
HOUSING: NYCHA & SECTION 8
115
HOUSING: NYCHA & SECTION 8
 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.
Legal Action Center – May 20, 2014
How do you prove “rehabilitation”?
116
 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 20, 2014
HOUSING: NYCHA & SECTION 8
117
Legal Action Center – May 20, 2014
POLL #5
118
HOUSING: NYCHA & SECTION 8
A NYCHA applicant was released from parole for a D
felony three years ago. What should she do?
a. Decide she’s out of luck
b. Wait 2 years
c. Request a hearing
Legal Action Center – May 20, 2014
POLL:
119
HOUSING: NYCHA & SECTION 8
C. Request a hearing! Ineligibility determinations can be overcome.
Legal Action Center – May 20, 2014
ANSWER:
120
HOUSING: OTHER GOV’T FUNDING
•
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 20, 2014
 Some protections also apply to private apartments that
get government funding and charge reduced rent.
121
 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 20, 2014
HOUSING: FAIR HOUSING ACT
122
HAVE QUESTIONS?
 212-243-1313
Legal Action Center – May 20, 2014
 Call the Legal Action Center
123
Please return the evaluation to get Certificate of Attendance.
Legal Action Center – May 20, 2014
Feedback?
124
Thank you for completing this webinar!
If you haven’t officially registered with the NYS Department of
Health AIDS Institute, http://www.hivtrainingny.org/ please sign
up!
Get credit for your attendance!
Contact Vanessa Severino at [email protected]
Legal Action Center – May 20, 2014
Have you registered?
125
Thank you!
And thanks to the AIDS Institute,
New York State Department of Health.
Legal Action Center – May 20, 2014
This concludes the training.
126