Testimony: Fair Chance Act Amendments
Estee Konor
Before the NYC Council Committee on Civil and Human Rights
January 22, 2020
Thank you for the opportunity to testify today in support of Int. 1314-A, which would amend the administrative code of the city of New York to prohibit employment discrimination based on arrests pending at the time of employment and pending arrests and convictions that occur during employment.
My name is Estee Konor and I am a Senior Staff Attorney at the Community Service Society of New York (“CSS”). CSS is a nonprofit organization with a 175-year history of excellence in addressing the root causes of economic disparity in New York through research, advocacy, litigation, and innovative program models that benefit all New Yorkers. Several CSS programs provide services to the most vulnerable New Yorkers, including justice-involved individuals. Because having a conviction history substantially undermines an individual’s chances of full participation in the community, CSS’s Legal Department focuses exclusively on advocacy, policy and litigation approaches to combatting criminal records-based discrimination in employment, licensing, housing and civic engagement. Additionally, CSS’s Next Door Project helps more than 600 New Yorkers each year obtain, review, understand and correct mistakes in their New York State and FBI rap sheets. This work helps put individuals with conviction histories in the best position possible as they seek employment, occupational licensing and housing.
CSS supports providing employment protections to New Yorkers facing criminal record-based barriers because of arrests pending at the time of application for employment and pending arrests and convictions that occur during employment:
CSS supports the proposed legislation’s amendment to the NYC Human Rights Law to provide employment protections to vulnerable New Yorkers whose record-based barriers to employment were not previously addressed by the NYC Human Rights Law. Under existing law – as amended by the Fair Chance Act – New Yorkers who have a pending arrest at the time of their application for employment and individuals who are arrested for or convicted of a crime during their employment do not receive the same legal safeguards provided to job applicants who have a criminal conviction at the time of employment. The proposed legislation provides protections to these groups of New Yorkers by furnishing an analytical framework – the Fair Chance Factors – for employers to use when evaluating these situations and specifying the processes they must follow.
The proposed legislation’s protections are important because they support the presumption of innocence afforded to individuals charged with crimes by taking steps to reduce the employment consequences of an arrest. Currently, simply being arrested has the potential to upend an individual’s life by impacting their ability to maintain employment, keep their housing, and provide care for their children, in addition to many other consequences. The proposed legislation takes a step towards addressing these challenges by ensuring that applicants and employees will not be automatically denied employment or fired from their job simply because they have been arrested. Similarly, proposed protections for employees who incur a criminal conviction during their employment are important because they give individuals the chance to keep their job after a conviction. Individuals who incur a criminal conviction during their employment deserve protections similar to those already provided to job applicants, because they face similar challenges: maintaining employment after a conviction is vital to an individual’s ability to build and maintain a stable life for themselves and their family.
CSS supports providing employment protections to New Yorkers whose criminal cases have been Adjourned in Contemplation of Dismissal or sealed, and those adjudicated as Youthful Offenders:
CSS supports the proposed legislation’s protections for New Yorkers whose criminal cases have been adjourned in contemplation of dismissal (“ACD”) or sealed, and individuals who have been adjudicated Youthful Offenders. This coverage is especially important in ACD cases, where an individual does not plead guilty to any crime; instead, the judge issues an order adjourning the matter for a certain period of time, with a view to ultimately dismissing it completely if the individual does not incur any additional criminal charges during that time period.
Currently, after a matter is adjourned in contemplation of dismissal but before it is dismissed and sealed, employers generally view the matter as open and pending, and treat it as such – terminating employment or choosing not to hire a person otherwise qualified. This undermines the intended benefit of adjourning a case in contemplation of dismissal by forcing the defendant to surmount additional obstacles during the very time period when they have been tasked with avoiding any further charges. The proposed legislation would right this wrong.
CSS strongly urges the City Council to correct an apparent inadvertent error in the proposed legislation’s discussion of misrepresentations made by job applicants or employees:
Section 8-107(10)(g) of the proposed legislation states that the protections provided by the statute do not apply to adverse employment actions an employer has taken in response to “misrepresentations” made by applicants or employees. The word “intentional” should be inserted in each instance where the term “misrepresentation” is used, so as to provide protection – as does Correction Law Article 23-A – to individuals who have inadvertently misstated their conviction histories.
The proposed legislation’s current language could definitely harm those CSS clients and many other New Yorkers who inadvertently misstate their conviction histories in response to employer inquiries. People make mistakes for a variety of reasons, including that they do not understand their conviction histories (a situation our Next Door Project helps prevent); may mistake arrest charges for conviction charges; may not understand that taking a plea to a charge is the equivalent of a conviction; or may have forgotten convictions that took place long ago or during a period of substance use disorder, homelessness or mental health issues. It is not uncommon for individuals who have had contact with the criminal punishment system to be uncertain about every aspect of their record. Where an inadvertent mistake has been made, applicants and employees should be given an opportunity to correct the information they have provided to the employer. The proposed legislation, as written, could unintentionally serve to punish vulnerable New Yorkers who make genuine mistakes when recounting their conviction histories. CSS urges the City Council to remedy this issue by clarifying that the exemptions provided in Section 8-107(10)(g) apply only to intentional misrepresentations made by applicants or employees, which will bring this section in line with Correction Law Section 751.
CSS supports the proposed legislation’s application of the Fair Chance Factors to situations not addressed by Correction Law Article 23-A, but we suggest eliminating “evidence of rehabilitation” as a relevant Fair Chance Factor for situations involving pending arrests:
The proposed legislation amends Section 8-102 to add a definition of relevant Fair Chance Factors. These factors provide an analytical rubric that employers must follow in situations not currently addressed by Correction Law Article 23-A. The Fair Chance Factors closely mirror the Correction Law Sections 752 and 753. CSS generally supports the inclusion of these Fair Chance Factors in the proposed legislation. CSS does, however, have concerns about the application of evidence of rehabilitation as a relevant Fair Chance Factor in situations involving pending arrests.
Specifically, we have concerns about including “evidence of rehabilitation” as a factor to be considered in situations involving an employee’s pending arrest. First, employee submissions and discussions with employers regarding evidence of rehabilitation could involve employees providing statements or descriptions of the circumstances surrounding their arrest, the incident that led to their arrest, their plans on how to deal with the case, or their self-perception of their culpability in the relevant incident. This would be problematic because it would not only undermine the presumption of innocence afforded to defendants in criminal cases, but it could result in employees making statements regarding their pending cases that could later impact the outcome of their criminal case. The proposed legislation should avoid creating situations where individuals charged with crimes are encouraged to provide statements regarding their pending case to their employers.
Second, the very concept of “rehabilitation” regarding a pending arrest is problematic. Individuals charged with crimes are afforded a presumption of innocence. Given that presumption of innocence, no “wrong” exists that would require any sort of rehabilitation. Even if the evidence of rehabilitation provided by an employee completely avoided any discussion of the circumstances surrounding the pending charges and only addressed the individual’s general good conduct in the community, the proposed legislation would have the effect of requiring employees to prove their good standing as community members as part of their effort to maintain their employment. This would have a disproportionate impact on communities of color and other marginalized communities who are targeted by aggressive policing and arrested at rates that far exceed their representation in the City’s population.
In addition to the concerns about the Fair Chance Factors listed above, CSS also suggests that consideration of an individual’s age at the time of arrest or conviction be added as a factor. The reason it is important to consider a person’s age at the time of arrest or conviction is to highlight the fact that young people should not be held to the same standard as adults when evaluating their contacts with police, prosecutors and courts.
CSS strongly opposes the proposed legislation’s dramatic broadening of existing exemptions to address situations where criminal background checks are mandated by federal, state, or local law and urges the City Council to maintain the Fair Chance Act’s existing language on this issue:
The proposed legislation appears to significantly expand an existing exemption in the NYC Human Rights Law regarding situations where a criminal background check is required for employment purposes by federal, state or local law. Section 8-107(11-a)(f)(3) of the proposed legislation states that the protections provided in the statute do not apply to any actions taken by an employer with regard to “[a]n applicant for employment or a current employee employed in a position for which any federal, state or local law requires criminal background checks for employment purposes or bars employment based on criminal history” (emphasis added). This language exempts any action taken by an employer regarding an applicant/employee for positions where a criminal background check is required by law for employment purposes. This exemption is much broader than the existing exemption in the NYC Human Rights Law, which – instead of exempting actions taken regarding certain positions for employment – exempted actions taken by employers pursuant to existing laws that require criminal background checks for employment purposes (See Section 8-107(11-a)(e) of current NYC Human Rights Law). The existing language exempts employer actions taken pursuant to relevant federal, state or local laws but preserves the employment protections provided by the statute during other parts of the hiring process. The proposed legislation broadens this exemption significantly.
CSS strongly opposes this dramatic change. Exempting employer actions regarding positions for which a criminal background check is required by law for employment purposes would have the effect of gutting the NYC Human Rights Law for many low-wage jobs, such as home health workers, security guards, etc. CSS urges the City Council to reject this amendment.
CSS supports providing employment protections to New Yorkers who have unsealed violation convictions, but cautions against unintentionally disadvantaging current employees who have unsealed violation convictions by permitting inquiries into them:
CSS strongly supports providing employment protections to New Yorkers who have unsealed violation convictions. It does appear, however, that employees who incur an unsealed violation conviction during employment have – probably unintentionally – been afforded fewer protections than job applicants who have unsealed violation convictions. CSS offers the following specific comments:
The proposed legislation would repeal Section 8-107(9)(5) and replace it with language that provides protections to job applicants who have unsealed violation convictions. Specifically, that section prohibits employers from making inquiries into applicants’ unsealed violation convictions as well as taking adverse employment actions against job applicants because of them. But it does not address current employees. A later section of the proposed legislation – Section 8-107(11)(b) – specifically addresses employment protections to be afforded to current employees who have unsealed violation convictions. Section 8-107(11)(b) prohibits employers from taking adverse employment actions against employees because of unsealed violation convictions and other non-criminal offenses but does not address or prohibit an employer making an inquiry into a current employee’s unsealed violation conviction. Meanwhile, Section 8-107(11)(a) addresses a similar issue and prohibits employers from inquiring about or taking adverse employment actions for both job applicants and current employees based on non-pending arrests and criminal accusations.
It is important to note that, in New York City courts, individuals convicted of violation-level offenses are generally sentenced to a one-year conditional discharge period. Clerks normally do not seal violation convictions until the end of this period, with the result that individuals may be damaged by inquiries about them – they may be considered “pending cases,” though in most every instance no further action or court appearances are required.
CSS recommends addressing this issue first, by amending Section 8-107(9)(5) so that it applies to both job applicants and current employees; and second, by amending Section 8-107(11)(b) so that it mirrors the protections provided by Section 8-107(11)(a) and prohibits employers from both inquiring about and taking adverse employment actions based on unsealed violation convictions.
It is important to ensure that workers who incur a violation conviction during employment are not disadvantaged by employer inquiries into those offenses. Violations are not criminal convictions. An offer to plead guilty to a violation is often made at arraignment on criminal charges, after an individual has been in custody for a period of time and may be suffering consequences as a result of the arrest that may build if they are not immediately released. Individuals will therefore often accept this offer instead of continuing to fight the charges against them so that they can minimize the wide-ranging disruption to their lives. An employer will have already had an opportunity to inquire about an employee’s arrest at the time charges were pending. If the case is resolved through a violation conviction, no further inquiry should be permitted – whether or not the matter is sealed.
CSS urges the City Council to engage with CSS and other legal services providers and allocate resources sufficient to provide the public and employers with training and information regarding the complex changes regarding the protections provided to job-seekers and employees in the proposed legislation:
As is detailed above, CSS strongly supports the additional employment protections provided in the proposed legislation. But, the proposed changes are complex and address different types of employment situations, different types of dispositions in criminal cases, different analytical frameworks to be applied in varying situations, and different types of actions employers are permitted to take. CSS is concerned that these changes may be confusing – not only to advocates – but also to employers and workers. If members of the public are not aware of the new employment protections available to them, they will not be able to advocate for themselves or seek out legal assistance when a problem arises. In order to ensure that the proposed legislation actually has the intended positive impact on the lives of vulnerable New Yorkers, CSS urges the City Council to (a) engage with CSS and other legal services providers and reentry advocates who help low-income New Yorkers overcome barriers to reentry to provide public education regarding the proposed legislation’s changes to the NYC Human Rights Law; and (b) and consider allocating funds to these providers and advocates so that they may assist as many New Yorkers as need their services.