NY State Senate Bill 2019-S8043A

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 05, 2020	print number 8043a
Aug 05, 2020	amend and recommit to crime victims, crime and correction
Mar 12, 2020	referred to crime victims, crime and correction

Bill Amendments

Original

A (Active)

2019-S8043 - Details

See Assembly Version of this Bill:: A8504
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd Art 23-A Art Head, §§751, 752 & 753, add §752-a, Cor L; add §5-338, Gen Ob L; add §79-q, Civ Rts L
Versions Introduced in 2021-2022 Legislative Session:: S338, A1527

2019-S8043 - Summary

Requires public agencies and private employers to adopt a policy that requires the public agency or private employer to provide a person who has been convicted of a crime an opportunity to submit an explanation of the facts surrounding the offense and conviction and any other information the person deems relevant to the issue prior to making a determination regarding the convicted person's employment or a determination to refuse to issue a license to such person; requires contracts not be terminated, canceled or not renewed due to a conviction without an opportunity to submit an explanation.

2019-S8043 - Sponsor Memo

                                
 
BILL NUMBER: S8043

SPONSOR: PERSAUD
 
TITLE OF BILL:

An act to amend the correction law, the general obligations law and the
civil rights law, in relation to enacting the "second chance act"

 
PURPOSE:

To make it the public policy of New York to promote forgiveness and
redemption to an individual who was convicted of a criminal act that
could subject that person to loss of employment or the ability to prac-
tice a trade . or profession through which they earn their livelihood.

 
SUMMARY OF PROVISIONS:

Section one of the bill cites that the bill shall be known as the
"second chance act."

Section two of the bill states the legislative findings and intent.

Section three of the bill amends article heading 23-A of the correction
law.

Section four amends § 752 of the correction law to prohibit denying or
adversely acting upon an application for a license or employment to
which the provision of Article 23-A of the correction law relating to
the licensure and employment of persons previously convicted of one or
more criminal offenses are applicable because of an individual being
convicted of one or more criminal offenses and also proclaims that such
prohibition shall include situations where a finding that a person lacks
"good moral character" is based upon their being convicted, except when
(i) there is a direct relationship between one or more of the previous
criminal offenses and the specific license or employment sought or held
by the individual or (ii) the issuance or continuation of the license or
the granting or continuation of the employment would involve an unrea-
sonable risk to property or to the safety or welfare of specific indi-
viduals or the general public.

Section five of the bill amends subdivision 1 and adds subdivision '3 to
§ 753 of the correction law. Subdivision one requires that information
produced by a person or on his or her behalf, in regard to the circum-
stances of the conviction, be considered by a public agency or private
business entity as one of the factors when determining whether to deny
employment or licensure. This subdivision also makes technical chang-
es.Subdivision three requires the public agency or private employer or
corporation to adopt a policy providing the previously convicted person
with an opportunity to submit an explanation of the facts surrounding
the offense and conviction and any other information the person deems
relevant to the issue prior to making the aforementioned determination.
This subdivision also states that nothing in the subdivision prohibits
the public agency or private business entity or corporation from impos-
ing sanctions upon the person convicted of or previously convicted of a
crime in accordance with the regulations, policies and practices of the
public agency or private employer.



Section six of the bill adds § 5-338 to the general obligation law
declaring void and unenforceable agreements which include termination
due to the conviction of a party.

Subdivision one deem every covenant, agreement, or understanding between
a governmental entity or grantor private business entity or corporation
and a person or persons enabling such person or persons to carry out
specified commercial activities, including, but not limited to, provid-
ing a broadcasting service or acting as an agent for the governmental
entity or grantor private business or corporation, which includes a
clause allowing for the termination of the covenant, agreement or under-
standing upon a conviction of such person or persons void as against
public policy and wholly unenforceable.

Subdivision two adds that all covenants, agreements, and understandings
between a governmental entity or grantor business entity or corporation
and a person or persons enabling such person or persons to carry out
specific commercial activities, including, but not limited to, providing
a broadcasting service or acting as an agent for the governmental entity
or grantor private business or corporation, be required to include and
extend to such person or persons the right to an opportunity to submit
an explanation of the facts surrounding any conviction or alleged
offense as well as any other information the party deems relevant to the
conviction or alleged offense prior to any party terminating a business
contract or contract of employment due to a conviction or alleged
offense.

Subdivision three states that nothing in the section prohibits the
governmental entity or grantor private business entity or corporation
from imposing sanctions upon a person or persons convicted of or previ-
ously convicted of a crime in accordance with the regulations, policies
and practices of the public agency or grantor private business entity or
corporation. However, such sanctions shall not be of a duration that
would in effect terminate the viability of the affiliated business.

Subdivision four adds that if a review of the facts finds that in the
history of the existence of the grantor private business entity or
corporation, a person or persons holding a similar license or agreement
to do business in the name of the grantor private business entity or
corporation, who, while holding such license, or prior to being granted
such license, was convicted of a felony or any offense for which the
grantor private business entity or corporation could have claimed and
exercised the right to terminate the business relationship or permit to,
act under the name of the grantor private business entity or corpo-
ration, but the grantor private business entity or corporation, in exer-
cising its discretion, allowed such person or persons to acquire or
continue to hold and exercise the license and authority to do business,
and the grantor private business entity or corporation took no action to
terminate the agreement and determined not to provide an extension of
forgiveness and a second chance, the grantor private business entity or
corporation shall be required to state why it determined not to grant
the second chance to the applicant and burden of proof will be on the
grantor private business entity or corporation to demonstrate with
substantive and convincing proof how the extension of forgiveness and a
second chance would be detrimental to the interest of the grantor
private business entity or corporation.


Section seven of the bill adds § 79-o to civil rights law to prohibit
terminating, canceling, or refusing to renew a contract because an indi-
vidual is convicted of one or more criminal offenses without providing
them the opportunity to submit an explanation of the facts surrounding
the conviction or alleged offense and any other information the person
deems relevant to the the conviction or alleged offense and affording
them a reasonable review of the facts and a reasonable consideration for
the extension of forgiveness and a second chance.

Section eight of the bill provides the effective date.

 
JUSTIFICATION:

No person is infallible and when a person makes a mistake, there are
consequences.The mistakes which have the most ramifications usually
occur at important junctures in a person's life and carry not only imme-
diate impacts but also long-term unforeseen costs.Mistakes of the great-
est severity include situations where a person has committed a crime and
is required to pay a debt to society. However, once a person has paid
that debt, they should not automatically face continued punishment.
Although the law provides that an individual who has committed a crime
should not face unfair discrimination, exceptions exists when there is a
direct relationship between the crime committed and the business or
employment which is sought. In many instances, business agreements and
employer-employee relationships include stipulations where one party can
terminate the agreement or relationship when the crime the person
committed adversely affects the business. The ability to determine
whether there is a direct relationship between the crime committed and
the specific license or employment sought or held by the individual is
extremely one-sided and grants one party a tremendous amount of power
over the other. This legislation seeks to address this inequity
 by requiring the in such circumstances, an opportunity is afforded to
an individual to explain the circumstances under which the crime
occurred and give them the opportunity to receive a reasonable review of
the facts and a reasonable consideration for the extension of forgive-
ness and a second chance. By allowing an individual a forum to explain
the situation that surrounded their actions, it will provide a business
entity or employer a more comprehensive understanding of the environment
under which the deed occurred and greater ability to make a well thought
out decision.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
EFFECTIVE DATE:
Immediately.

2019-S8043 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8043
 
                             I N  S E N A T E
 
                              March 12, 2020
                                ___________
 
 Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
   printed to be committed to the Committee on Crime Victims,  Crime  and
   Correction
 
 AN  ACT to amend the correction law, the general obligations law and the
   civil rights law, in relation to enacting the "second chance act"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This  act  shall be known and may be cited as the "second
 chance act".
   § 2. Legislative findings and intent.  The  legislature  hereby  finds
 that  notwithstanding moral and ethical upbringing, individuals from all
 status and places in life are predisposed to making wrong decisions that
 carry consequences detrimental  to  such  person's  best  interest.  The
 legislature further finds and agrees with the general consensus that, as
 humans  we  are  not infallible and are all subject to making errors and
 mistakes at various stages in our lives. The legislature also finds that
 the adoption of public policy that embraces and  provides  opportunities
 for  forgiveness  and  redemption,  and  also  allows for those who make
 errors to have the right to a second chance, is in the best interest and
 the overall good and positive benefit to our great state.  Therefore, it
 is the intent of the legislature to provide with this law a right and  a
 process  through  which such person, shall be allowed the opportunity to
 explain the circumstances which led to such person being convicted of  a
 crime,  and  rather  than  automatically being dismissed from his or her
 job, for there to be a process which provides for the reasonable  review
 of  the  facts  and  a  reasonable  consideration  for  the extension of
 forgiveness and a second chance which would allow such  person  to  hold
 and  continue  in such employment without loss of income, wages or other
 benefits commensurate with the position.
   § 3. The article heading of article 23-A of  the  correction  law,  as
 added by chapter 931 of the laws of 1976, is amended to read as follows:
             LICENSURE AND EMPLOYMENT OF PERSONS CONVICTED OF OR
           PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11000-21-0

 S. 8043                             2
 
   §  4.  Section 752 of the correction law, as amended by chapter 284 of
 the laws of 2007, is amended to read as follows:
   §  752.  Unfair discrimination against persons CONVICTED OR previously
 convicted of one or more criminal offenses  prohibited.  No  application
 for  any  license or employment, and no employment or license held by an
 individual, to which the provisions  of  this  article  are  applicable,
 shall  be denied or acted upon adversely by reason of the [individual's]
 INDIVIDUAL BEING CONVICTED OF ONE OR MORE CRIMINAL  OFFENSES  OR  having
 been previously convicted of one or more criminal offenses, or by reason
 of  a  finding  of  lack  of "good moral character" when such finding is
 based upon the fact that the individual has BEEN OR HAS previously  been
 convicted of one or more criminal offenses, unless:
   (1) there is a direct relationship between one or more of the previous
 criminal  offenses and the specific license or employment sought or held
 by the individual; or
   (2) the issuance or continuation of the license  or  the  granting  or
 continuation  of  the  employment  would involve an unreasonable risk to
 property or to the safety or welfare  of  specific  individuals  or  the
 general public.
   §  5.  Subdivision 1 of section 753 of the correction law, as added by
 chapter 931 of the laws of 1976, paragraph (b) as amended by chapter 284
 of the laws of 2007, is amended and a new subdivision 3 is added to read
 as follows:
   1. In making a determination pursuant to section seven hundred  fifty-
 two  of  this  [chapter]  ARTICLE, the public agency or private employer
 shall consider the following factors:
   (a) The public policy of this state, as  expressed  in  this  act,  to
 encourage  the  licensure and employment of persons previously convicted
 of one or more criminal offenses.
   (b) The specific duties and responsibilities  necessarily  related  to
 the license or employment sought or held by the person.
   (c)  The  bearing,  if any, the criminal offense or offenses for which
 the person was previously convicted will have on his OR HER  fitness  or
 ability to perform one or more such duties or responsibilities.
   (d)  The  time  which has elapsed since the occurrence of the criminal
 offense or offenses.
   (e) The age of the person at the time of occurrence  of  the  criminal
 offense or offenses.
   (f) The seriousness of the offense or offenses.
   (g)  Any information produced by the person, or produced on his OR HER
 behalf, in regard to THE CIRCUMSTANCES OF THE CONVICTION AND his OR  HER
 rehabilitation and good conduct.
   (h)  The  legitimate interest of the public agency or private employer
 in protecting property, and the safety and welfare of specific  individ-
 uals or the general public.
   3.  EACH PUBLIC AGENCY OR PRIVATE BUSINESS ENTITY OR CORPORATION SHALL
 ADOPT A  POLICY  THAT REQUIRES  THE  PUBLIC  AGENCY  OR PRIVATE BUSINESS
 ENTITY  OR  CORPORATION TO PROVIDE THE CONVICTED OR PREVIOUSLY CONVICTED
 PERSON WITH AN OPPORTUNITY TO SUBMIT AN  EXPLANATION  OF    THE    FACTS
 SURROUNDING THE  OFFENSE  AND  CONVICTION AND ANY OTHER INFORMATION SUCH
 PERSON  DEEMS  RELEVANT  TO  THE  ISSUE, PRIOR TO MAKING A DETERMINATION
 PURSUANT TO SUBDIVISIONS ONE AND TWO OF SECTION SEVEN HUNDRED  FIFTY-TWO
 OF  THIS  ARTICLE. NOTHING   IN   THIS   SUBDIVISION   SHALL  PROHIBIT A
 PUBLIC AGENCY, PRIVATE BUSINESS ENTITY OR  CORPORATION  DULY  AUTHORIZED
 TO    CONDUCT BUSINESS   IN  THIS STATE  FROM  IMPOSING SANCTIONS UPON A
 PERSON CONVICTED OF OR PREVIOUSLY CONVICTED OF  A  CRIME  IN  ACCORDANCE

 S. 8043                             3
 
 WITH  THE REGULATIONS,   POLICIES  AND PRACTICES OF THE PUBLIC AGENCY OR
 PRIVATE EMPLOYER.
   §  6.   The general obligations law is amended by adding a new section
 5-338 to read as follows:
   § 5-338. AGREEMENTS INCLUDING TERMINATION DUE TO THE CONVICTION  OF  A
 PARTY  VOID  AND UNENFORCEABLE. 1.   EVERY COVENANT, AGREEMENT OR UNDER-
 STANDING BETWEEN A GOVERNMENTAL ENTITY OR GRANTOR PRIVATE BUSINESS ENTI-
 TY OR CORPORATION AND   A PERSON OR  PERSONS  ENABLING  SUCH  PERSON  OR
 PERSONS  TO  CARRY OUT SPECIFIED   COMMERCIAL ACTIVITIES,  INCLUDING BUT
 NOT LIMITED TO PROVIDING A BROADCASTING SERVICE OR    ACTING    AS    AN
 AGENT    FOR    THE   GOVERNMENTAL ENTITY OR GRANTOR PRIVATE BUSINESS OR
 CORPORATION,  WHICH INCLUDES  A CLAUSE ALLOWING FOR THE  TERMINATION  OF
 THE  COVENANT,  AGREEMENT  OR  UNDERSTANDING  UPON  A CONVICTION OF SUCH
 PERSON OR PERSONS SHALL BE DEEMED TO BE VOID AS  AGAINST  PUBLIC  POLICY
 AND WHOLLY UNENFORCEABLE.
   2. ALL COVENANTS, AGREEMENTS OR UNDERSTANDINGS BETWEEN A  GOVERNMENTAL
 ENTITY  OR  GRANTOR PRIVATE BUSINESS  ENTITY OR CORPORATION AND A PERSON
 OR  PERSONS  ENABLING  SUCH  PERSON OR PERSONS TO  CARRY  OUT  SPECIFIED
 COMMERCIAL  ACTIVITIES, INCLUDING  BUT NOT LIMITED TO PROVIDING A BROAD-
 CASTING SERVICE OR ACTING AS AN AGENT FOR  THE  GOVERNMENTAL  ENTITY  OR
 GRANTOR  PRIVATE  BUSINESS  OR  CORPORATION, SHALL INCLUDE AND EXTEND TO
 SUCH PERSON OR PERSONS THE RIGHT TO AN OPPORTUNITY TO SUBMIT AN EXPLANA-
 TION OF THE FACTS SURROUNDING ANY CONVICTION OR ALLEGED OFFENSE AS  WELL
 AS  ANY  OTHER INFORMATION THE PARTY DEEMS RELEVANT TO THE CONVICTION OR
 ALLEGED OFFENSE PRIOR TO ANY PARTY TERMINATING A  BUSINESS CONTRACT   OR
 CONTRACT  OF EMPLOYMENT  DUE  TO  A CONVICTION OR ALLEGED OFFENSE.
   3. NOTHING IN THIS SECTION SHALL PROHIBIT  A  GOVERNMENTAL  ENTITY  OR
 GRANTOR  PRIVATE  BUSINESS   ENTITY OR CORPORATION FROM  IMPOSING  SANC-
 TIONS  UPON  A PERSON OR PERSONS CONVICTED OR PREVIOUSLY CONVICTED OF  A
 CRIME  IN  ACCORDANCE  WITH  THE  REGULATIONS, POLICIES AND PRACTICES OF
 THE  GOVERNMENTAL  ENTITY  OR  GRANTOR PRIVATE BUSINESS ENTITY OR CORPO-
 RATION. SUCH SANCTIONS SHALL NOT BE OF A DURATION THAT WOULD  IN  EFFECT
 TERMINATE THE VIABILITY OF THE AFFILIATED BUSINESS.
   4.  IF  A  REVIEW  OF  THE FACTS SHALL FIND THAT IN THE HISTORY OF THE
 EXISTENCE  OF  THE GRANTOR PRIVATE BUSINESS  ENTITY  OR  CORPORATION,  A
 PERSON  OR PERSONS HOLDING A SIMILAR LICENSE OR AGREEMENT TO DO BUSINESS
 IN THE NAME OF THE GRANTOR PRIVATE BUSINESS ENTITY OR  CORPORATION,  WHO
 WHILE  HOLDING  SUCH LICENSE OR PRIOR TO BEING GRANTED SUCH LICENSE, WAS
 CONVICTED OF A FELONY OR ANY OFFENSE FOR WHICH THE GRANTOR PRIVATE BUSI-
 NESS ENTITY OR CORPORATION COULD HAVE CLAIMED AND EXERCISED THE RIGHT TO
 TERMINATE THE BUSINESS RELATIONSHIP OR PERMIT TO ACT UNDER THE  NAME  OF
 THE  GRANTOR  PRIVATE  BUSINESS  ENTITY OR CORPORATION, BUT SUCH GRANTOR
 PRIVATE BUSINESS ENTITY OR CORPORATION, IN EXERCISE OF  ITS  DISCRETION,
 ALLOWED SUCH PERSON OR PERSONS TO ACQUIRE OR CONTINUE TO HOLD AND  EXER-
 CISE    SUCH  LICENSE  AND AUTHORITY   TO   DO BUSINESS, AND THE GRANTOR
 PRIVATE BUSINESS ENTITY OR CORPORATION TOOK NO ACTION TO TERMINATE  SUCH
 AGREEMENT, AND THE GRANTOR PRIVATE BUSINESS ENTITY OR CORPORATION DETER-
 MINED  NOT  TO  PROVIDE AN EXTENSION OF FORGIVENESS AND A SECOND CHANCE,
 THE GRANTOR PRIVATE BUSINESS ENTITY OR CORPORATION SHALL  STATE  WHY  IT
 DETERMINED  NOT  TO  GRANT  SUCH  SECOND CHANCE TO THE APPLICANT AND THE
 BURDEN OF PROOF WILL BE ON  SUCH  GRANTOR  PRIVATE  BUSINESS  ENTITY  OR
 CORPORATION TO DEMONSTRATE WITH SUBSTANTIVE AND CONVINCING PROOF HOW THE
 EXTENSION OF FORGIVENESS AND A SECOND CHANCE WOULD BE DETRIMENTAL TO THE
 INTEREST OF THE GRANTOR PRIVATE BUSINESS ENTITY OR CORPORATION.
   §  7.  The civil rights law is amended by adding a new section 79-p to
 read as follows:

 S. 8043                             4
 
   § 79-P. RIGHT TO A REASONABLE REVIEW OF FACTS AND A REASONABLE CONSID-
 ERATION FOR THE EXTENSION OF FORGIVENESS AND A SECOND CHANCE. NO  PERSON
 OR  ENTITY SHALL TERMINATE, CANCEL OR REFUSE TO RENEW ANY CONTRACT BASED
 ON AN INDIVIDUAL BEING CONVICTED OF ONE OR MORE CRIMINAL OFFENSES  WITH-
 OUT  SUCH INDIVIDUAL BEING GIVEN AN OPPORTUNITY TO SUBMIT AN EXPLANATION
 OF THE FACTS SURROUNDING ANY CONVICTION OR ALLEGED OFFENSE  AS  WELL  AS
 ANY OTHER INFORMATION THE INDIVIDUAL DEEMS RELEVANT TO THE CONVICTION OR
 ALLEGED  OFFENSE  AND  PROVIDED  A  REASONABLE REVIEW OF THE FACTS AND A
 REASONABLE CONSIDERATION FOR THE EXTENSION OF FORGIVENESS AND  A  SECOND
 CHANCE.
   § 8. This act shall take effect immediately.

2019-S8043A (ACTIVE) - Details

See Assembly Version of this Bill:: A8504
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd Art 23-A Art Head, §§751, 752 & 753, add §752-a, Cor L; add §5-338, Gen Ob L; add §79-q, Civ Rts L
Versions Introduced in 2021-2022 Legislative Session:: S338, A1527

2019-S8043A (ACTIVE) - Summary

2019-S8043A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8043a

SPONSOR: PERSAUD
 
TITLE OF BILL:

An act to amend the correction law, the general obligations law and the
civil rights law, in relation to enacting the "second chance act"

 
PURPOSE OR GENERAL IDEA OF BILL:

To promote forgiveness and redemption to an individual who was convicted
of a criminal act that could subject that person to loss of employment
or the ability to practice a trade or profession through which they earn
their livelihood.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill cites that the bill shall be known as the
"Second Chance act."

Section two of the bill amends the heading of article 23-A of the

Correction Law to read as: Licensure and Employment of Persons Convicted
of One or More Criminal Offenses.

Section three of the bill amends § 751 of the Correction Law to provide
that provisions of Article 23-A of the Correction Law apply to any
application made by any person for a license or employment at any public
or private employer who has been previously convicted of one or more
criminal offenses in this state or another jurisdiction, and to any
license or employment held by any person whose conviction of one or more
criminal offenses in this state or in any other jurisdiction preceded or
succeeded such employment or granting of a license, except where a
mandatory forfeiture, disability, or bar to employment is imposed by law
and has not been removed by an executive pardon, certificate of relief
from disabilities or certificate of good conduct.

Section four of the bill amends § 752 of the Correction Law to provide
that, in specified circumstances, an application for a license or
employment, and employment or a license held by an individual, would not
be denied or acted upon adversely without appropriate consideration
because the individual has been convicted of one or more criminal
offenses.

Section five of the bill adds a new § 752-a to the Correction Law to add
that except where continued licensure or employment is prohibited by
law, no person who holds a license or is employed by any public or
private employer shall have such license revoked or shall be denied
continuation or resumption of such employment by reason of the individ-
ual having been convicted of one or more criminal offenses, or by reason
of a finding of a lack of "good moral character," when such finding is
based upon the fact that the individual has been convicted of one or
more criminal offenses, unless:

    (a) there is a direct relationship between one or more of the crimi-
nal offenses and the specific license or employment held by the individ-
ual; or
    (b) continuation of the license or the continuation or resumption of
such employment would involve an unreasonable risk to property or to the
safety or welfare of specific individuals of the general public.
This reflects the current standards applied to persons previously
convicted.

As used in this section, the term "convicted" shall mean a conviction
for a crime other than a class B violent felony as defined in the penal
law, or a class A or class A-II felony as defined in the penal law,
other than a class A or class A-II felony as defined in article two
hundred twenty of the penal law, or an offense in another jurisdiction
which includes all of the essential elements of any such crime.

Section six of the bill amends subdivision 1 and adds subdivision 3 to §
753 to the Correction Law to, subject to exceptions, require each public
agency and private business entity or corporation to adopt a policy that
requires such entity or corporation to provide a convicted individual
with an opportunity to submit an explanation of the facts surrounding
the offense and conviction and any other relevant information, prior to
making a determination to revoke a license or terminate such employment.

Section seven of the bill adds a new § 5-338 to the General Obligations
Law, regarding agreements concerning termination due to a conviction.

Subdivision one of this section deems that except where continuation of
such commercial activities are prohibited by law under such circum-
stances, every covenant, agreement or understanding between a govern-
mental entity, private business entity or corporation and a person or
persons enabling such person or persons to carry out specified commer-
cial activities, which includes a clause requiring the automatic termi-
nation of the covenant, agreement or understanding upon a conviction of
such person or persons shall be deemed to be void as against public
policy and unenforceable.

Subdivision two of this section provides that except where continuation
of such covenants, agreements or understandings are prohibited by law
under such circumstances, all covenants, agreements or understandings
between a governmental entity, private business entity or corporation
and a person or persons enabling such person or persons to carry out
specified commercial activities shall include and extend to such person
or persons the right to an opportunity to submit an explanation of the
facts surrounding any conviction or alleged offense as well as any other
information the party deems relevant to the conviction or alleged
offense prior to any party terminating a business contract or contract
of employment due to a conviction or alleged offense.

Subdivision three of this section states that nothing in this section
shall prohibit a governmental entity, private business entity or corpo-
ration from imposing sanctions upon a person or persons convicted of a
crime in accordance with the regulations, policies and practices of the
governmental entity, private business entity or corporation. Unless
otherwise authorized by law, such sanctions shall not be of a duration
that would in effect terminate the viability of the affiliated business.

Subdivision four of this section adds that if a review of the facts
shall find that in the history of the existence of the private business
entity or corporation, a person or persons holding a similar license or
agreement to do business in the name of the private business entity or
corporation, who while holding such license or prior to being granted
such license, was convicted of a felony or any offense for which the
private business entity or corporation could have claimed and exercised
the right to terminate the business relationship or permit to act under
the name of the private business entity or corporation, but such private
business entity or corporation, in exercise of its discretion, allowed
such person or persons to acquire or continue to hold and exercise such
license and authority to do business, and the private business entity or
corporation took no action to termination such agreement, and the
private business entity or corporation determined not to provide an
extension of forgiveness and a second chance, the private business enti-
ty or corporation shall state why it determined not to grant such second
chance to such person.

Section eight of the bill adds a new § 79-q to the Civil Rights Law to,
in most circumstances, prohibit a governmental entity, private business
entity or corporation from terminating, canceling or refusing any
contract based on an individual being convicted of one or more criminal
offenses without an opportunity for such individual to submit an expla-
nation of the facts surrounding any convicted or alleged offense as well
as any other information the individual deems relevant to the conviction
or alleged offense, and provide a reasonable review of the facts and
reasonable consideration for the extension of forgiveness and a second
chance.

Section nine is the effective date.

JUSTIFICATION:

Notwithstanding even a moral and ethical upbringing, individuals from
all status and places in life sometimes make wrong decisions that carry
consequences detrimental to such person's best interest. As humans we
are not infallible and are all subject to making errors and mistakes in
our lives. The adoption of public policy that embraces and provides
opportunities for forgiveness and redemption, and also allows for those
who make errors to have the right to be considered for a second chance,
is in the best interest and the overall good and positive benefit to our
great state.

This bill would provide a right and a process through which many persons
would be allowed the opportunity to explain relevant circumstances
relating to being convicted of a crime and, rather than automatically
being dismissed from his or her job, for there to be a process which
provides for the reasonable review of the facts and a reasonable consid-
eration for the extension of forgiveness and a second chance, potential-
ly allowing such person to hold and continue in such employment without
loss of income, wages or other benefits commensurate with the position.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
EFFECTIVE DATE:
60 days after the bill becomes a law.

2019-S8043A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8043--A
 
                             I N  S E N A T E
 
                              March 12, 2020
                                ___________
 
 Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
   printed to be committed to the Committee on Crime Victims,  Crime  and
   Correction -- committee discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN  ACT to amend the correction law, the general obligations law and the
   civil rights law, in relation to enacting the "second chance act"

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This  act  shall be known and may be cited as the "second
 chance act".
   § 2. The article heading of article 23-A of  the  correction  law,  as
 added by chapter 931 of the laws of 1976, is amended to read as follows:
              LICENSURE AND EMPLOYMENT OF PERSONS [PREVIOUSLY]
                CONVICTED OF ONE OR MORE CRIMINAL OFFENSES
   §  3.  Section 751 of the correction law, as amended by chapter 284 of
 the laws of 2007, is amended to read as follows:
   § 751. Applicability. The provisions of this article  shall  apply  to
 any  application by any person for a license or employment at any public
 or private employer, who has previously been convicted of  one  or  more
 criminal offenses in this state or in any other jurisdiction, and to any
 license or employment held by any person whose conviction of one or more
 criminal offenses in this state or in any other jurisdiction preceded OR
 SUCCEEDED  such  employment  or  granting  of  a license, except where a
 mandatory forfeiture, disability or bar to employment is imposed by law,
 and has not been removed by an executive pardon, certificate  of  relief
 from  disabilities or certificate of good conduct. Nothing in this arti-
 cle shall be construed to affect any right an  employer  may  have  with
 respect to an intentional misrepresentation in connection with an appli-
 cation  for employment made by a prospective employee or previously made
 by a current employee.
   § 4. Section 752 of the correction law, as amended by chapter  284  of
 the laws of 2007, is amended to read as follows:
   §  752.  Unfair discrimination against persons previously convicted of
 one or more criminal offenses prohibited. No application for any license
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD11000-27-0

 S. 8043--A                          2
 
 or employment, and no employment or license held by  an  individual,  to
 which  the provisions of this article are applicable, shall be denied or
 acted upon adversely by reason of the  [individual's]  INDIVIDUAL  BEING
 CONVICTED  OF  ONE  OR  MORE CRIMINAL OFFENSES OR having been previously
 convicted of one or more criminal offenses, or by reason of a finding of
 lack of "good moral character" when such finding is based upon the  fact
 that  the individual has previously been convicted of one or more crimi-
 nal offenses, unless:
   (1) there is a direct relationship between one or more of the previous
 criminal offenses and the specific license or employment sought or  held
 by the individual; or
   (2)  the  issuance  or  continuation of the license or the granting or
 continuation of the employment would involve  an  unreasonable  risk  to
 property  or  to  the  safety  or welfare of specific individuals or the
 general public.
   § 5. The correction law is amended by adding a new  section  752-a  to
 read as follows:
   §  752-A.  CONVICTION  WHILE  EMPLOYED  OR  LICENSED.  1. EXCEPT WHERE
 CONTINUED LICENSURE OR EMPLOYMENT IS PROHIBITED BY LAW,  NO  PERSON  WHO
 HOLDS  A  LICENSE  OR  WHO IS EMPLOYED BY ANY PUBLIC OR PRIVATE EMPLOYER
 SHALL HAVE SUCH LICENSE REVOKED  OR  SHALL  BE  DENIED  CONTINUATION  OR
 RESUMPTION  OF  SUCH EMPLOYMENT BY REASON OF SUCH INDIVIDUAL HAVING BEEN
 CONVICTED OF ONE OR MORE CRIMINAL OFFENSES, OR BY REASON OF A FINDING OF
 A LACK OF GOOD MORAL CHARACTER, WHEN SUCH FINDING IS BASED UPON THE FACT
 THAT SUCH  INDIVIDUAL  HAS  BEEN  CONVICTED  OF  ONE  OR  MORE  CRIMINAL
 OFFENSES, UNLESS:
   (A) THERE IS A DIRECT RELATIONSHIP BETWEEN ONE OR MORE OF THE CRIMINAL
 OFFENSES AND THE SPECIFIC LICENSE OR EMPLOYMENT HELD BY SUCH INDIVIDUAL;
 OR
   (B)  CONTINUATION  OF THE LICENSE OR THE CONTINUATION OR RESUMPTION OF
 SUCH EMPLOYMENT WOULD INVOLVE AN UNREASONABLE RISK TO PROPERTY OR TO THE
 SAFETY OR WELFARE OF SPECIFIC INDIVIDUALS OR THE GENERAL PUBLIC.
   2. AS USED  IN  THIS  SECTION,  THE  TERM  "CONVICTED"  SHALL  MEAN  A
 CONVICTION FOR A CRIME OTHER THAN A CLASS B VIOLENT FELONY AS DEFINED IN
 THE PENAL LAW, OR A CLASS A OR CLASS A-II FELONY AS DEFINED IN THE PENAL
 LAW, OTHER THAN A CLASS A OR CLASS A-II FELONY AS DEFINED IN ARTICLE TWO
 HUNDRED  TWENTY  OF THE PENAL LAW, OR AN OFFENSE IN ANOTHER JURISDICTION
 WHICH INCLUDES ALL OF THE ESSENTIAL ELEMENTS OF ANY SUCH CRIME.
   § 6. Subdivision 1 of section 753 of the correction law, as  added  by
 chapter 931 of the laws of 1976, paragraph (b) as amended by chapter 284
 of the laws of 2007, is amended and a new subdivision 3 is added to read
 as follows:
   1.  In making a determination pursuant to section seven hundred fifty-
 two OR SECTION SEVEN HUNDRED FIFTY-TWO-A of this [chapter] ARTICLE,  the
 public agency or private employer shall consider the following factors:
   (a)  The  public  policy  of  this state, as expressed in this act, to
 encourage the licensure and employment of persons  previously  convicted
 of one or more criminal offenses.
   (b)  The  specific  duties and responsibilities necessarily related to
 the license or employment sought or held by the person.
   (c) The bearing, if any, the criminal offense or  offenses  for  which
 the  person  was previously convicted will have on his OR HER fitness or
 ability to perform one or more such duties or responsibilities.
   (d) The time which has elapsed since the occurrence  of  the  criminal
 offense or offenses.

 S. 8043--A                          3
 
   (e)  The  age  of the person at the time of occurrence of the criminal
 offense or offenses.
   (f) The seriousness of the offense or offenses.
   (g)  Any information produced by the person, or produced on his OR HER
 behalf, INCLUDING in regard  to  his  OR  HER  rehabilitation  and  good
 conduct.
   (h)  The  legitimate interest of the public agency or private employer
 in protecting property, and the safety and welfare of specific  individ-
 uals or the general public.
   3.  EXCEPT  WHERE  CONTINUED LICENSURE OR EMPLOYMENT OF SUCH PERSON IS
 PROHIBITED BY LAW UNDER  SUCH  CIRCUMSTANCES,  EACH  PUBLIC  AGENCY  AND
 PRIVATE  BUSINESS  ENTITY  AND  CORPORATION SHALL ADOPT A   POLICY  THAT
 REQUIRES  THE  PUBLIC  AGENCY  OR PRIVATE BUSINESS ENTITY OR CORPORATION
 TO PROVIDE SUCH CONVICTED PERSON WITH AN OPPORTUNITY TO SUBMIT AN EXPLA-
 NATION OF  THE  FACTS  SURROUNDING THE  OFFENSE  AND  CONVICTION AND ANY
 OTHER INFORMATION SUCH PERSON DEEMS RELEVANT  TO  THE  ISSUE,  PRIOR  TO
 MAKING  A  DETERMINATION  PURSUANT TO SECTION SEVEN HUNDRED FIFTY-TWO OR
 SEVEN HUNDRED FIFTY-TWO-A OF THIS ARTICLE. NOTHING  IN   THIS   SUBDIVI-
 SION  SHALL  PROHIBIT A PUBLIC AGENCY, PRIVATE BUSINESS ENTITY OR CORPO-
 RATION DULY AUTHORIZED  TO  CONDUCT BUSINESS IN THIS STATE FROM IMPOSING
 SANCTIONS  UPON  A  PERSON  CONVICTED  OF A CRIME IN ACCORDANCE WITH THE
 REGULATIONS, POLICIES  AND PRACTICES OF THE  PUBLIC  AGENCY  OR  PRIVATE
 EMPLOYER.
   §  7.  The  general obligations law is amended by adding a new section
 5-338 to read as follows:
   § 5-338. AGREEMENTS  CONCERNING  TERMINATION  DUE  TO  CONVICTION.  1.
 TERMINATION. EXCEPT WHERE CONTINUATION OF SUCH COMMERCIAL ACTIVITIES ARE
 PROHIBITED BY LAW UNDER SUCH CIRCUMSTANCES, EVERY COVENANT, AGREEMENT OR
 UNDERSTANDING  BETWEEN A GOVERNMENTAL ENTITY, PRIVATE BUSINESS ENTITY OR
 CORPORATION AND  A PERSON OR PERSONS ENABLING SUCH PERSON OR PERSONS  TO
 CARRY  OUT  SPECIFIED    COMMERCIAL ACTIVITIES, WHICH INCLUDES  A CLAUSE
 REQUIRING THE AUTOMATIC TERMINATION OF THE COVENANT, AGREEMENT OR UNDER-
 STANDING UPON A CONVICTION OF SUCH PERSON OR PERSONS SHALL BE DEEMED  TO
 BE VOID AS AGAINST PUBLIC POLICY AND WHOLLY UNENFORCEABLE.
   2.  EXPLANATION.  EXCEPT  WHERE CONTINUATION OF SUCH COVENANTS, AGREE-
 MENTS OR UNDERSTANDINGS ARE PROHIBITED BY LAW UNDER SUCH  CIRCUMSTANCES,
 ALL  COVENANTS,  AGREEMENTS  OR  UNDERSTANDINGS BETWEEN A   GOVERNMENTAL
 ENTITY, PRIVATE BUSINESS ENTITY OR CORPORATION AND A PERSON  OR  PERSONS
 ENABLING  SUCH  PERSON  OR PERSONS TO  CARRY  OUT  SPECIFIED  COMMERCIAL
 ACTIVITIES SHALL INCLUDE AND EXTEND TO SUCH PERSON OR PERSONS THE  RIGHT
 TO  AN OPPORTUNITY TO SUBMIT AN EXPLANATION OF THE FACTS SURROUNDING ANY
 CONVICTION OR ALLEGED OFFENSE AS WELL AS ANY OTHER INFORMATION THE PARTY
 DEEMS RELEVANT TO THE CONVICTION OR ALLEGED OFFENSE PRIOR TO  ANY  PARTY
 TERMINATING  A   BUSINESS CONTRACT  OR  CONTRACT  OF EMPLOYMENT  DUE  TO
 A CONVICTION OR ALLEGED OFFENSE.
   3. SANCTIONS.  NOTHING IN THIS SECTION SHALL PROHIBIT  A  GOVERNMENTAL
 ENTITY, PRIVATE BUSINESS  ENTITY OR CORPORATION FROM   IMPOSING    SANC-
 TIONS    UPON   A PERSON OR PERSONS CONVICTED OF A CRIME  IN  ACCORDANCE
 WITH  THE  REGULATIONS, POLICIES AND PRACTICES OF THE GOVERNMENTAL ENTI-
 TY, PRIVATE BUSINESS ENTITY OR CORPORATION. UNLESS OTHERWISE  AUTHORIZED
 BY  LAW,  SUCH SANCTIONS SHALL NOT BE OF A DURATION THAT WOULD IN EFFECT
 TERMINATE THE VIABILITY OF THE AFFILIATED BUSINESS.
   4. COMPARABILITY.  IF A REVIEW OF THE FACTS SHALL  FIND  THAT  IN  THE
 HISTORY  OF THE EXISTENCE OF THE PRIVATE BUSINESS ENTITY OR CORPORATION,
 A PERSON OR PERSONS HOLDING A SIMILAR LICENSE OR AGREEMENT TO  DO  BUSI-
 NESS  IN  THE  NAME  OF  THE PRIVATE BUSINESS ENTITY OR CORPORATION, WHO

 S. 8043--A                          4
 
 WHILE HOLDING SUCH LICENSE OR PRIOR TO BEING GRANTED SUCH  LICENSE,  WAS
 CONVICTED  OF  A  FELONY  OR  ANY OFFENSE FOR WHICH THE PRIVATE BUSINESS
 ENTITY OR CORPORATION COULD HAVE CLAIMED  AND  EXERCISED  THE  RIGHT  TO
 TERMINATE  THE  BUSINESS RELATIONSHIP OR PERMIT TO ACT UNDER THE NAME OF
 THE PRIVATE BUSINESS ENTITY OR CORPORATION, BUT  SUCH  PRIVATE  BUSINESS
 ENTITY  OR  CORPORATION,  IN  EXERCISE  OF  ITS DISCRETION, ALLOWED SUCH
 PERSON OR PERSONS TO ACQUIRE OR CONTINUE TO HOLD AND    EXERCISE    SUCH
 LICENSE  AND AUTHORITY  TO  DO BUSINESS, AND THE PRIVATE BUSINESS ENTITY
 OR CORPORATION TOOK NO ACTION TO TERMINATE  SUCH    AGREEMENT,  AND  THE
 PRIVATE  BUSINESS  ENTITY  OR  CORPORATION  DETERMINED NOT TO PROVIDE AN
 EXTENSION OF FORGIVENESS AND A SECOND CHANCE, THE PRIVATE BUSINESS ENTI-
 TY OR CORPORATION SHALL STATE WHY IT DETERMINED NOT TO GRANT SUCH SECOND
 CHANCE TO SUCH PERSON AND THE BURDEN OF PROOF SHALL BE ON  SUCH  PRIVATE
 BUSINESS  ENTITY  OR  CORPORATION  TO  DEMONSTRATE  WITH SUBSTANTIVE AND
 CONVINCING PROOF HOW SUCH EXTENSION OF FORGIVENESS AND A  SECOND  CHANCE
 WOULD  BE  DETRIMENTAL TO THE INTEREST OF THE PRIVATE BUSINESS ENTITY OR
 CORPORATION.
   § 8. The civil rights law is amended by adding a new section  79-q  to
 read as follows:
   § 79-Q. RIGHT TO A REASONABLE REVIEW OF FACTS AND A REASONABLE CONSID-
 ERATION  FOR  THE  EXTENSION OF FORGIVENESS AND A SECOND CHANCE.  EXCEPT
 WHERE CONTINUATION OF SUCH CONTRACT IS  PROHIBITED  BY  LAW  UNDER  SUCH
 CIRCUMSTANCES, NO GOVERNMENTAL ENTITY, PRIVATE BUSINESS ENTITY OR CORPO-
 RATION  SHALL TERMINATE, CANCEL OR REFUSE TO RENEW ANY CONTRACT BASED ON
 AN INDIVIDUAL BEING CONVICTED OF ONE OR MORE CRIMINAL  OFFENSES  WITHOUT
 SUCH  INDIVIDUAL  BEING GIVEN AN OPPORTUNITY TO SUBMIT AN EXPLANATION OF
 THE FACTS SURROUNDING ANY CONVICTION OR ALLEGED OFFENSE AS WELL  AS  ANY
 OTHER  INFORMATION  THE  INDIVIDUAL  DEEMS RELEVANT TO THE CONVICTION OR
 ALLEGED OFFENSE AND PROVIDED A REASONABLE REVIEW  OF  THE  FACTS  AND  A
 REASONABLE  CONSIDERATION  FOR THE EXTENSION OF FORGIVENESS AND A SECOND
 CHANCE.
   § 9. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

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Senate Bill S8043A

Sponsored By

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Bill Amendments

2019-S8043 - Details

2019-S8043 - Summary

2019-S8043 - Sponsor Memo

2019-S8043 - Bill Text download pdf

2019-S8043A (ACTIVE) - Details

2019-S8043A (ACTIVE) - Summary

2019-S8043A (ACTIVE) - Sponsor Memo

2019-S8043A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S8043A

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Sponsored By

Roxanne J. Persaud

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Bill Amendments

2019-S8043 - Details

2019-S8043 - Summary

2019-S8043 - Sponsor Memo

2019-S8043 - Bill Text download pdf

2019-S8043A (ACTIVE) - Details

2019-S8043A (ACTIVE) - Summary

2019-S8043A (ACTIVE) - Sponsor Memo

2019-S8043A (ACTIVE) - Bill Text download pdf

Comments