NY State Senate Bill 2021-S338

Archive: Last Bill Status - Stricken

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 15, 2021	recommit, enacting clause stricken
Jan 06, 2021	referred to crime victims, crime and correction

2021-S338 (ACTIVE) - Details

See Assembly Version of this Bill:: A1527
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 2019-2020 Legislative Session:: S8043, A8504

2021-S338 (ACTIVE) - 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.

2021-S338 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S338

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 of an individual where conviction of a criminal act 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 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 corpo-
ration from imposing sanctions upon a person or persons convicted of or
previously 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 dura-
tion 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:
Notwithstanding a moral and ethical upbringing, individuals from all
stations and places in life can make decisions that carry consequences
detrimental to such person's best interest. Humans are not infallible
and are equally subject to making errors and mistakes in life. 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:

2020: S8043-A referred to Senate Crime victims, Crime and Correction
Committee

 
EFFECTIVE DATE:
Immediately.

2021-S338 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    338
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 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. 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02835-01-1

 S. 338                              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 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 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.

 S. 338                              3
 
   (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, 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

 S. 338                              4
 
 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
 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 S338

Sponsored By

Archive: Last Bill Status - Stricken

2021-S338 (ACTIVE) - Details

2021-S338 (ACTIVE) - Summary

2021-S338 (ACTIVE) - Sponsor Memo

2021-S338 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S338

Share this bill

Sponsored By

Roxanne J. Persaud

Archive: Last Bill Status - Stricken

2021-S338 (ACTIVE) - Details

2021-S338 (ACTIVE) - Summary

2021-S338 (ACTIVE) - Sponsor Memo

2021-S338 (ACTIVE) - Bill Text download pdf

Comments