Senate Bill S3995

2019-2020 Legislative Session

Prohibits employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal

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Archive: Last Bill Status - In Senate Committee Investigations And Government Operations 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to investigations and government operations
Feb 22, 2019	referred to investigations and government operations

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2019-S3995 (ACTIVE) - Details

See Assembly Version of this Bill:: A6045
Current Committee:: Senate Investigations And Government Operations
Law Section:: Executive Law
Laws Affected:: Amd §296, Exec L; amd §§170.55 & 170.56, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A7014
2013-2014: A4589
2015-2016: S5595, A1721
2017-2018: S3205, A4038
2021-2022: A7591
2023-2024: A7191
2025-2026: A5929

2019-S3995 (ACTIVE) - Summary

Prohibits employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal.

2019-S3995 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S3995

SPONSOR: SERRANO
 
TITLE OF BILL:  An act to amend the executive law and the criminal
procedure law, in relation to preventing employment discrimination
against persons whose criminal charges have been adjourned in contem-
plation of dismissal

 
PURPOSE OR GENERAL IDEA OF BILL:

To bring arrested persons whose criminal charges have been adjourned in
contemplation of dismissal within the protection of those provisions of
the Human Rights Law and the Criminal Procedure Law which prevent
employment discrimination against persons who have been arrested but not
convicted of any crime.

 
SUMMARY OF SPECIFIC PROVISIONS:

This bill amends the Human Rights Law and the Criminal Procedure Law to
provide that licensing agencies, employers, and providers of credit or
insurance shall not make inquiries about, or take adverse actions based

on, an arrest or criminal accusation which has been adjourned in contem-
plation of dismissal (ACD). It further provides that, in connection with
employment, licensing, credit or insurance, individuals whose criminal
charges have been adjourned in contemplation of dismissal shall not be
required to divulge information about these charges, and their ACD shall
be treated, for these specified employment and licensing purposes, as a
termination of the case in the defendant's favor.

 
JUSTIFICATION:

Current law affords employment discrimination protections to persons
whose criminal cases end in dismissal or acquittal, in youthful offender
adjudications, in convictions of noncriminal violations or infractions
(with certain limited exceptions), and in convictions of drug offenses
where the defendant has completed a drug treatment program and has
satisfied the court that he or she is deserving of this protection.

While current law is very clear in protecting individuals from being
denied jobs or licenses, or being terminated from their jobs or having
their licenses revoked because of an arrest that was terminated in the
individual's favor; cases that are adjourned in contemplation of
dismissal have presented unintended employment and licensing challenges
to persons who similarly have been arrested without being found guilty
of anything.

An adjournment in contemplation of dismissal is a court order that sche-
dules the dismissal of a criminal case. An ACD is not a conviction, plea
agreement, or admission of guilt. Instead, the defendant, prosecutor,
and judge agree that the case will be dismissed on a set date unless the
defendant is rearrested or violates a court-ordered condition. An esti-
mated 99.4% of ACD cases result in dismissal.

Currently, state laws concerning criminal record discrimination protect
individuals whose arrests did not lead to conviction, so long as the
charges are not pending. However, ACDs are not considered "terminated in
the defendant's favor" until the passage of a determined period of time;
six months or a year in most instances.  Though the ACD often requires
no further court dates or actions by the defendant, employment discrimi-
nation protections do not cover them until the date the dismissal
occurs.

Under existing law, employers can and often do deny job applicants who
have received an ACD on the theory that the case is "pending," even
though just a tiny fraction of ACD cases are ever restored to the calen-
dar and prosecuted. This places an unfair and unnecessary obstacle in
the path of job applicants, where the prosecution has already conceded
that the person did nothing that requires pursuit of criminal charges.

Additionally, employers are often required to fire workers or suspend
them without pay for the 6-month or 12-month period of an ACD because a
government agency that must authorize the employment considers the case
"pending" and withholds necessary authorization. This is an onerous
burden on employees, particularly low-income employees in service
professions like health and education. A governmental licensing or
supervisory agency should not block retention or reinstatement merely
because time must pass before the ACD "ripens" into a dismissal; and
ACDs almost always end in dismissal.

This bill would clarify current law to prohibit employers and licensing
agencies from considering ACD cases during the period of the adjourn-
ment, unless the ACD order is revoked and the case is restored to the
calendar for further prosecution. This bill does not alter non-employ-
ment related statutes concerning ACDs such as gun licensing and law
enforcement employment.

 
PRIOR LEGISLATIVE HISTORY:

2017-18: S.3205a Serrano - Referred to Investigations and Government
Operations
2015-16: S.5595 Serrano - Referred to Investigations and Government
Operations
Passed Assembly 2013.
Ordered to Third Reading 2014.2017.2018.
Referred to Correction in 2015 and 2016.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
90 days after it shall have become a law; provided however that section
two of this act shall take effect on the same day and in the same manner
as section 48-a of part WWW of chapter 59 of the laws of 2017 takes
effect.

2019-S3995 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3995
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2019
                                ___________
 
 Introduced by Sens. SERRANO, COMRIE, HOYLMAN, KRUEGER, RIVERA, SEPULVEDA
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Investigations and Government Operations
 
 AN  ACT  to  amend  the executive law and the criminal procedure law, in
   relation to preventing employment discrimination against persons whose
   criminal charges have been adjourned in contemplation of dismissal
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Subdivision  16 of section 296 of the executive law, as
 amended by section 48-a of part WWW of chapter 59 of the laws  of  2017,
 is amended to read as follows:
   16.  It  shall  be an unlawful discriminatory practice, unless specif-
 ically required or permitted by statute, for any person, agency, bureau,
 corporation or association, including the state and any political subdi-
 vision thereof, to make any inquiry about, whether in any form of appli-
 cation or  otherwise,  or  to  act  upon  adversely  to  the  individual
 involved,  any arrest or criminal accusation of such individual not then
 pending against that individual which was followed by a  termination  of
 that  criminal  action  or  proceeding  in  favor of such individual, as
 defined in subdivision two of section 160.50 of the  criminal  procedure
 law,  OR  BY AN ORDER ADJOURNING THE CRIMINAL ACTION IN CONTEMPLATION OF
 DISMISSAL, PURSUANT TO SECTION 170.55, 170.56, 210.46, 210.47, OR 215.10
 OF THE CRIMINAL PROCEDURE LAW, or by a youthful  offender  adjudication,
 as  defined  in subdivision one of section 720.35 of the criminal proce-
 dure law, or by a conviction for a violation sealed pursuant to  section
 160.55  of the criminal procedure law or by a conviction which is sealed
 pursuant to section 160.59 or 160.58 of the criminal procedure  law,  in
 connection  with  the  licensing,  employment  or providing of credit or
 insurance to such individual; provided, further, that no person shall be
 required to divulge information pertaining to  any  arrest  or  criminal
 accusation  of  such individual not then pending against that individual
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01412-01-9

 S. 3995                             2
 
 which was followed by a termination of that criminal action or  proceed-
 ing  in  favor  of  such  individual,  as  defined in subdivision two of
 section 160.50 of the criminal procedure law, OR BY AN ORDER  ADJOURNING
 THE  CRIMINAL  ACTION IN CONTEMPLATION OF DISMISSAL, PURSUANT TO SECTION
 170.55, 170.56, 210.46, 210.47 OR 215.10 OF THE CRIMINAL PROCEDURE  LAW,
 or by a youthful offender adjudication, as defined in subdivision one of
 section  720.35  of the criminal procedure law, or by a conviction for a
 violation sealed pursuant to section 160.55 of  the  criminal  procedure
 law,  or  by  a conviction which is sealed pursuant to section 160.58 or
 160.59 of the criminal procedure law. The provisions of this subdivision
 shall not apply to the licensing activities of  governmental  bodies  in
 relation to the regulation of guns, firearms and other deadly weapons or
 in  relation  to  an  application  for employment as a police officer or
 peace officer as those terms are defined  in  subdivisions  thirty-three
 and  thirty-four of section 1.20 of the criminal procedure law; provided
 further that the provisions of this subdivision shall not  apply  to  an
 application  for  employment or membership in any law enforcement agency
 with respect to any arrest or criminal accusation which was followed  by
 a  youthful  offender  adjudication,  as  defined  in subdivision one of
 section 720.35 of the criminal procedure law, or by a conviction  for  a
 violation  sealed  pursuant  to section 160.55 of the criminal procedure
 law, or by a conviction which is sealed pursuant to  section  160.58  or
 160.59  of the criminal procedure law. FOR PURPOSES OF THIS SUBDIVISION,
 AN ACTION WHICH HAS BEEN ADJOURNED IN CONTEMPLATION OF DISMISSAL, PURSU-
 ANT TO SECTION 170.55, 170.56, 210.46, 210.47 OR 215.10 OF THE  CRIMINAL
 PROCEDURE  LAW,  SHALL  NOT  BE  CONSIDERED A PENDING ACTION, UNLESS THE
 ORDER TO ADJOURN IN CONTEMPLATION OF DISMISSAL IS REVOKED AND  THE  CASE
 IS RESTORED TO THE CALENDAR FOR FURTHER PROSECUTION.
   § 2. Subdivision 8 of section 170.55 of the criminal procedure law, as
 added  by  chapter  134 of the laws of 1982 and as renumbered by chapter
 683 of the laws of 1990, is amended to read as follows:
   8. The granting of an adjournment in contemplation of dismissal  shall
 not  be  deemed  to  be a conviction or an admission of guilt. No person
 shall suffer any disability or forfeiture as a result of such an  order.
 UPON  GRANTING  THE ORDER OF ADJOURNMENT, THE ACTION SHALL BE CONSIDERED
 TERMINATED IN THE DEFENDANT'S FAVOR FOR THE PURPOSE OF THE PROVISIONS OF
 SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED NINETY-SIX OF  THE  EXECUTIVE
 LAW.  Upon  the  dismissal of the accusatory instrument pursuant to this
 section, the arrest and prosecution shall be deemed a  nullity  and  the
 defendant  shall  be restored, in contemplation of law, to the status he
 OR SHE occupied before his OR HER arrest and prosecution.
   § 3. Subdivision 4 of section 170.56 of the criminal procedure law, as
 added by chapter 1042 of the  laws  of  1971,  is  amended  to  read  as
 follows:
   4.  UPON  THE GRANTING OF AN ORDER PURSUANT TO SUBDIVISION TWO OF THIS
 SECTION, THE ACTION SHALL BE CONSIDERED TERMINATED  IN  THE  DEFENDANT'S
 FAVOR  FOR  THE  PURPOSE  OF  THE  PROVISIONS  OF SUBDIVISION SIXTEEN OF
 SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW. Upon  the  granting
 of  an  order  pursuant to subdivision three, the arrest and prosecution
 shall be deemed a nullity  and  the  defendant  shall  be  restored,  in
 contemplation of law, to the status he OR SHE occupied before his OR HER
 arrest and prosecution.
   § 4. No provision of this act shall be construed to impair or diminish
 any  rights an employee or licensee, or an applicant for employment or a
 license, may already possess pursuant to section 170.55 or 170.56 of the
 criminal procedure law.

 S. 3995                             3
 
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  on  or  before
 such date.

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Senate Bill S3995

Sponsored By

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Actions

co-Sponsors

2019-S3995 (ACTIVE) - Details

2019-S3995 (ACTIVE) - Summary

2019-S3995 (ACTIVE) - Sponsor Memo

2019-S3995 (ACTIVE) - Bill Text download pdf

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Sponsored By

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Actions

co-Sponsors

2019-S3995 (ACTIVE) - Details

2019-S3995 (ACTIVE) - Summary

2019-S3995 (ACTIVE) - Sponsor Memo

2019-S3995 (ACTIVE) - Bill Text download pdf

Comments