BILL NUMBER: S7142

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to preventing
employment discrimination against persons whose criminal charges have
been adjourned in contemplation of dismissal

 
PURPOSE::

To bring arrested persons whose criminal charges have been "adjourned in
contemplation of dismissal" within the protection of those provisions or
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 PROVISIONS::

Section 1 amends the Human Rights Law, Executive Law Section 296(16), 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'd). It further provides that individuals whose
criminal charges have been adjourned in contemplation of dismissal shall
not be required to divulge information about these charges in connection
with employment, licensing, credit or insurance. To accomplish this
purpose, the bill provides that a case which has been ACD'd, and has not
been restored to the court calendar, shall not be considered a "pending
case" for purposes of this provision.

Sections 2 and 3 amend the sections of the criminal procedure law which
authorize ACD's, sections 170.55 and 170.56 of the CPL, to provide that
once a case has been ACD'd, employers and governmental agencies which
issue various certificates, licenses, permits or authorizations that are
required by law as a condition of gaining or holding employment in vari-
ous types of positions, businesses and professions, shall treat the ACD
as a termination of the case in the defendant's favor. The intent of
this provision is that an employer or public agency which has suspended
or withheld a permit, license or clearance required by an individual
that is necessary for the individual to gain or retain employment, shall
not consider the matter pending until the final order of dismissal is
entered by the court, but shall proceed upon being notified of the ACD,
as it would proceed upon being notified of a dismissal or acquittal.
This provision would not limit the discretion of public or private
employers who have taken adverse action subsequent to an arrest but
before the ACD was ordered.

 
JUSTIFICATION::

Currently, state laws against criminal record discrimination protect
people whose arrests did not lead to conviction, so long as the charges
are not pending. However, there are no protections for people who have
received adjournments in contemplation of dismissal (ACD's), even though
they will be protected as soon as the dismissal occurs. A case that has
been ACD'd is not yet sealed under the provisions of the Criminal Proce-
dure Law and therefore is not considered "terminated" in the defendant's
favor under the existing statute, but it routinely will be dismissed and

sealed after the passage of six months or a year, depending on the
charge. See CPL § 170.55, 170.56, 210.46, 210.47, 215.10.

Under existing law, employers can and often do deny job applicants who
have received an ACD's on the theory that the case is "pending," even
though just a tiny fraction of ACD'd cases are ever restored to the
calendar 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. Executive Law Section 296(16) should be amended to add
protections against criminal record discrimination for anyone who has
received an adjournment in contemplation of dismissal, unless and until
that person's charges are restored to the court calendar.

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 the necessary authorization.,This is an unneces-
sary and onerous burden on employees, particularly low-income employees
in fast-growing service professions like health and education. When a
case has been ACD'd, and the employer is willing to retain or reinstate
the employee, a governmental licensing or supervisory agency should not
block retention or reinstatement merely because time must pass before
the ACD "ripens" into a dismissal. Because ACD'd cases almost always
result in dismissal, it would be unfair for the state and its instrumen-
talities to continue to deny the individual a source of income, merely
because they were arrested, once the Court has ordered the ACD and
thereby determined that the case does not warrant continued prosecution.

 
LEGISLATIVE HISTORY::

Assembly bill:

06/12/17 ordered to third reading rules cal.138

01/03/18 ordered to third reading cal.308

2019/2020 referred to correction

05/25/2021 reported referred to rules

02/17/2022 advanced to third reading cal. 434

01/03/202 referred to correction

 
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.