Senate Bill S4016

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4016

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 7, 2009
                               ___________

Introduced  by  Sen. MORAHAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and Families

AN ACT to amend the social  services  law  and  the  executive  law,  in
  relation to permitting access to conviction records by certain employ-
  ers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The social services law is amended by adding a new  section
378-b to read as follows:
  S  378-B.  ACCESS  TO  CONVICTION RECORDS BY CERTAIN EMPLOYERS. 1.  AN
EMPLOYER SHALL OBTAIN FROM THE DIVISION OF  CRIMINAL  JUSTICE  SERVICES,
THE  NEW  YORK STATE CONVICTION RECORD OR THE FEDERAL BUREAU OF INVESTI-
GATION CONVICTION RECORD FOR ALL OF HIS OR HER EMPLOYEES OR  PROSPECTIVE
EMPLOYEES, SUBJECT TO THE FOLLOWING RESTRICTIONS:
  A.  SUCH  EMPLOYER  SHALL DESIGNATE ONE INDIVIDUAL TO REQUEST, RECEIVE
AND REVIEW SUCH CONVICTION RECORD, AND ONLY SUCH DESIGNATED PERSON SHALL
HAVE ACCESS TO SUCH RECORD. SUCH EMPLOYER SHALL REGISTER SUCH DESIGNATED
INDIVIDUAL WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES;
  B.  SUCH  DESIGNATED  AND  REGISTERED  INDIVIDUAL  SHALL   MARK   SUCH
CONVICTION RECORD "CONFIDENTIAL" UPON RECEIPT, AND SHALL MAINTAIN AT ALL
TIMES SUCH CONVICTION RECORD IN A SECURE PLACE IN ORDER TO INSURE CONFI-
DENTIALITY.   A PERSON WHO VIOLATES THE CONFIDENTIALITY REQUIRED BY THIS
SUBDIVISION SHALL BE GUILTY OF A CLASS A MISDEMEANOR; AND
  C. SUCH EMPLOYER SHALL PAY THE FEE DETERMINED PURSUANT TO  SUBDIVISION
EIGHT-A  OF  SECTION EIGHT HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW FOR
THE RECEIPT OF A NEW YORK STATE CONVICTION RECORD AND/OR THE FEE  DETER-
MINED  PURSUANT TO THE CHILD PROTECTION ACT OF 1993 FOR THE RECEIPT OF A
FEDERAL BUREAU OF INVESTIGATION CONVICTION RECORD.
  2. BEFORE REQUESTING SUCH CONVICTION RECORD FROM THE DIVISION OF CRIM-
INAL JUSTICE SERVICES, SUCH EMPLOYER SHALL:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11020-01-9

              

S. 4016                             2

  A. INFORM ANY EMPLOYEE OR PROSPECTIVE EMPLOYEE THAT A  REQUEST  FOR  A
CONVICTION  RECORD  AND  A  REVIEW THEREOF IS REQUIRED IN ORDER FOR SUCH
EMPLOYEE TO CONTINUE IN  THE  SAME  CAPACITY  OR  FOR  SUCH  PROSPECTIVE
EMPLOYMENT TO BE ACCEPTED BY SUCH EMPLOYER;
  B.  INFORM  SUCH  EMPLOYEE  OR  PROSPECTIVE  EMPLOYEE THAT BEFORE SUCH
EMPLOYER MAKES A  REQUEST  FOR  CONVICTION  RECORDS,  SUCH  EMPLOYEE  OR
PROSPECTIVE  EMPLOYEE  HAS THE RIGHT TO OBTAIN AND REVIEW HIS OR HER OWN
CONVICTION RECORD, PURSUANT TO THE PROCEDURES OF THE DIVISION OF  CRIMI-
NAL JUSTICE SERVICES;
  C.  OBTAIN  THE  INFORMED  SIGNATURE  OF  SUCH EMPLOYEE OR PROSPECTIVE
EMPLOYEE ON A FORM PROVIDED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES
WHICH INDICATES THAT SUCH EMPLOYEE OR PROSPECTIVE EMPLOYEE HAS:
  I. BEEN INFORMED OF THE RIGHT TO REVIEW HIS OR HER OWN RECORDS;
  II. EXERCISED OR WAIVED SUCH RIGHT TO REVIEW HIS OR HER OWN RECORDS;
  III. BEEN INFORMED OF THE REASON FOR  SUCH  REQUEST  FOR  HIS  OR  HER
CONVICTION RECORD; AND
  IV. CONSENTED TO SUCH REQUEST; AND
  D.  OBTAIN  FINGERPRINTS  FROM  SUCH EMPLOYEE OR PROSPECTIVE EMPLOYEE,
PURSUANT TO THE PROCEDURES OF THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  3. A PROSPECTIVE EMPLOYEE MAY WITHDRAW FROM THE  APPLICATION  PROCESS,
WHETHER  OR NOT HE OR SHE HAS HAD ACCESS TO HIS OR HER CONVICTION RECORD
AND WHETHER OR NOT SUCH RECORD HAS BEEN RECEIVED BY SUCH CHAPTER,  WITH-
OUT PREJUDICE. IF THE CONVICTION RECORD OF SUCH PROSPECTIVE EMPLOYEE HAS
BEEN RECEIVED BY SUCH EMPLOYER, THE PERSON DESIGNATED BY SUCH CHAPTER TO
HAVE ACCESS TO CONVICTION RECORDS SHALL DESTROY SUCH RECORD.
  4.  THE  CONVICTION  RECORD  OF  AN EMPLOYEE SHALL BE DESTROYED BY THE
PERSON DESIGNATED BY SUCH CHAPTER TO HAVE ACCESS TO  CONVICTION  RECORDS
WHEN SUCH EMPLOYEE NO LONGER IS EMPLOYED BY SUCH EMPLOYER.
  5.  THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL PROVIDE A RESPONSE
TO AN EMPLOYER WITHIN FIFTEEN  BUSINESS  DAYS  OF  THE  RECEIPT  OF  ANY
REQUEST  BY  SUCH EMPLOYER FOR A NEW YORK STATE CONVICTION RECORD AND/OR
FEDERAL BUREAU OF INVESTIGATION CONVICTION RECORD IF:
  A. SUCH REQUEST IS MADE BY SUCH EMPLOYER'S DESIGNATED  INDIVIDUAL  WHO
IS REGISTERED WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES;
  B.  SUCH  REQUEST  IS  ACCOMPANIED BY A FORM SIGNED BY THE EMPLOYEE OR
PROSPECTIVE EMPLOYEE, WHO IS THE SUBJECT OF SUCH REQUEST, CONSENTING  TO
THE PROVISION OF SUCH RECORD; AND
  C.  SUCH  REQUEST  IS  ACCOMPANIED  BY  THE  EMPLOYEE'S OR PROSPECTIVE
EMPLOYEE'S FINGERPRINTS, OBTAINED PURSUANT  TO  THE  PROCEDURES  OF  THE
DIVISION OF CRIMINAL JUSTICE SERVICES.
  6.  THE  DIVISION  OF  CRIMINAL JUSTICE SERVICES SHALL, IN CONJUNCTION
WITH LAW ENFORCEMENT AGENCIES, PROMULGATE A LIST OF CRIMES DEEMED TO  BE
SO  VIOLENT OR DANGEROUS THAT IF AN EMPLOYEE OR PROSPECTIVE EMPLOYEE HAS
BEEN CONVICTED OF ANY CRIME FROM SUCH LIST, THEN AN EMPLOYER  SHALL  NOT
LET  SUCH PERSON PERFORM WORK, LABOR OR SERVICES ON THE OUTSIDE OF OR IN
A RESIDENCE. IF AN EMPLOYER VIOLATES THE PROVISIONS OF THIS  SUBDIVISION
HE OR SHE SHALL BE GUILTY OF A CLASS A MISDEMEANOR.
  7. THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL
PROMULGATE   THE  RULES  AND  REGULATIONS  NECESSARY  TO  IMPLEMENT  THE
PROVISIONS OF THIS SECTION INCLUDING, BUT  NOT  LIMITED  TO,  RULES  AND
REGULATIONS  PROVIDING  FOR  A  HEARING  FOR  AN EMPLOYEE OR PROSPECTIVE
EMPLOYEE BEFORE REPRESENTATIVES OF SUCH DIVISION AND THE OFFICE OF CHIL-
DREN AND FAMILY SERVICES FOR PURPOSES OF VERIFYING THE ACCURACY  OF  HIS
OR  HER  CONVICTION  RECORD  AND FOR ACCESS BY SUCH PERSONS TO PERTINENT
DOCUMENTS RELATED THERETO.

S. 4016                             3

  8. THE FAILURE OF AN EMPLOYER TO CONDUCT A BACKGROUND  CHECK  PURSUANT
TO  SUBDIVISION  ONE  OF THIS SECTION SHALL RESULT IN A CIVIL PENALTY OF
FIVE HUNDRED DOLLARS AND/OR UP  TO  SIX  MONTHS  IN  JAIL  FOR  A  FIRST
OFFENSE,  AND  A  CIVIL PENALTY OF ONE THOUSAND DOLLARS AND/OR UP TO ONE
YEAR IN JAIL FOR EACH SUBSEQUENT OFFENSE.
  9. FOR PURPOSES OF THIS SECTION:
  A.  "CONVICTION  RECORD" SHALL MEAN ANY RECORD MAINTAINED BY THE DIVI-
SION OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION
OF CONVICTIONS OF A CRIME IN VIOLATION OF THE PENAL LAW OF THIS  OR  ANY
OTHER STATE.
  B.  "EMPLOYEE"  AS  USED  IN  THIS SECTION SHALL BE ESTABLISHED BY THE
DIVISION OF CRIMINAL JUSTICE SERVICES AND  SHALL  APPLY  TO  ANY  PERSON
SEEKING OR HAVING PAID EMPLOYMENT FROM AN EMPLOYER. SUCH EMPLOYEES SHALL
INCLUDE,  BUT  NOT  BE  LIMITED TO, LANDSCAPERS, PLUMBERS, ELECTRICIANS,
PAINTERS, CARPENTERS, BUILDERS AND CONTRACTORS.
  C. "EMPLOYER" SHALL MEAN AN INDIVIDUAL OR CORPORATION WHO IS HIRED  BY
A  PERSON,  WHO  OWNS  OR  RENTS  A  RESIDENCE TO PERFORM WORK, LABOR OR
SERVICES ON THE OUTSIDE OF OR IN SUCH RESIDENCE WHO HIRES  EMPLOYEES  TO
PERFORM SUCH WORK, LABOR OR SERVICES.
  S  2.  Subdivision 8-a of section 837 of the executive law, as amended
by chapter 561 of the laws of 2006, is amended to read as follows:
  8-a. Charge a fee when, pursuant to statute or the regulations of  the
division,  it  conducts  a  search  of  its criminal history records and
returns a report thereon in connection with an application  for  employ-
ment  or  for a license or permit OR RETURNS A NEW YORK STATE CONVICTION
REPORT AND/OR A FEDERAL BUREAU OF INVESTIGATION CONVICTION REPORT THERE-
ON AS REQUIRED BY SECTION THREE HUNDRED SEVENTY-EIGHT-B  OF  THE  SOCIAL
SERVICES  LAW.    The  division  shall adopt and may, from time to time,
amend a schedule of such fees which shall be in  amounts  determined  by
the  division  to  be  reasonably related to the cost of conducting such
searches and returning reports thereon but, in no event, shall any  such
fee  exceed  twenty-five  dollars  and  an additional surcharge of fifty
dollars. The comptroller is hereby authorized to deposit such fees  into
the  general  fund,  provided,  however, that the monies received by the
division of criminal justice services  for  payment  of  the  additional
surcharge shall be deposited in equal amounts to the general fund and to
the  fingerprint  identification and technology account. Notwithstanding
the foregoing, the division shall not request  or  accept  any  fee  for
searching  its  records and supplying a criminal history report pursuant
to section two hundred fifty-one-b of the general business law  relating
to  participating  in  flight  instruction at any aeronautical facility,
flight school or institution of higher learning.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided  that  any  rules  and  regulations
necessary  to implement the provisions of this act on its effective date
are authorized and directed to be promulgated on or before  such  effec-
tive date.