S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1527
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2021
                                ___________
 
 Introduced  by  M.  of  A.  PERRY, WEPRIN, EPSTEIN, RICHARDSON, DICKENS,
   SIMON -- read once and referred to the Committee on 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.
   §  4.  Section 752 of the correction law, as amended by chapter 284 of
 the laws of 2007, is amended to read as follows:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02835-01-1
              

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   § 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.
   (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.

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   (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
 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,

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 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.