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Legislative Memo

Heather Briccetti, Esq.
Vice President, Government Affairs
T 518.465.7517 x203
www.bcnys.org

BILL:

S.1708-B (Sampson)/ A.6065-B (Lentol)

Support

SUBJECT:

Sealing of records for misdemeanor convictions

 

DATE:

June 16, 2010

 

This legislation would permit individuals convicted of up to three misdemeanors to petition the court to seal up to three eligible misdemeanor convictions (defined in the legislation) under certain circumstances.   The bill would further amend the Executive law to make it an unlawful discriminatory practice for any person, agency, bureau, corporation or association to make any inquiry about, or act upon adversely to the individual involved, by a conviction that is sealed pursuant to this section of law.  The Business Council strongly opposes enactment of this bill.

Conceals convictions that may be directly related to employment
This bill would broadly expand the categories of misdemeanor convictions that a person could have the records of such convictions sealed and thus unavailable to potential employers.  The misdemeanor convictions that could be legally concealed from an employer include offenses that could relate directly to the trustworthiness and reliability of potential employees, including Criminal Trespass, Tampering with consumer products, Perjury, Petit Larceny (theft), and criminal solicitation for a variety of offenses, including misdemeanor assault.

Conceals criminal history for which employers may be held liable
Preventing a potential employer from obtaining such information places the employer at risk of hiring individuals who have been convicted of offenses that make them unsuitable for various positions. It leaves employers in the untenable position of being held liable for the conduct of employees that would have been otherwise foreseeable had the employer the ability to obtain the records of such convictions. It's called negligent hiring. For example, a Bank would be prohibited from inquiring about a conviction for theft or perjury of an applicant and prohibited from eliminating that applicant from consideration for employment as a Teller based upon such conviction despite the obvious relevance in the bank's determination. 

This legislation flies in the face of the continued expansion of the liability of employers for conduct of its employees, and would prevent employers from making well-informed decisions about employees that could potentially put companies, other employees, and customers at greater risk.   

For these reasons, The Business Council opposes this legislation and strongly urges that it not be enacted by the New York State legislature.