OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS LEGAL ACTION CENTER 2014 1.

OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDSLEGAL ACTION CENTER2014

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Before you begin – Have you registered?

If you haven’t officially registered with the NYS Department of Health AIDS Institute, http://www.hivtrainingny.org/ please sign up!

Get credit for your attendance!

Contact Vanessa Severino at [email protected]

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http://www.hivtrainingny.org/


mailto:[email protected]

WHO’S THE LEGAL ACTION CENTER? ANTI-DISCRIMINATION &

PRIVACY WORK:

People with criminal records, alcohol/drug histories, and/or HIV/AIDS

Legal services & litigation

Advice to providers

Trainings

Policy advocacy & research3

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FREE LEGAL SERVICESIncluding –

HIV testing & confidentiality

Discrimination based on:

HIV status

Alcohol/drug history

Criminal record –

• Job & Housing Discrimination

Criminal Records –

RAP sheet review and error correction

Certificates of Relief and Good Conduct

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HAVE QUESTIONS? Call the Legal Action Center

• 212-243-1313

• Toll-Free: (800) 223-4044

Clients: ask for “paralegal on call”

• 9 a.m. – 5 p.m.

Providers: ask for “attorney on call”

• 1 p.m. – 5 p.m.5

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THIS TRAINING . . .

Is for health and social service providers working with HIV-positive individuals who have criminal records – especially those seeking employment and housing.

Explains how New Yorkers with criminal records can improve their chances of finding employment and housing despite the barriers having a criminal record might pose.

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TODAY’S AGENDA

Today’s training has 4 Parts:

Part One – Criminal Record History• Background check sources• RAP sheets, including errors and

corrections, sealing• Issues related to criminal background

checks

Part Two – Evidence of Rehabilitation• How to show it• Certificates of Relief from Disabilities• Certificates of Good Conduct

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TODAY’S AGENDA (CONT.)Today’s training has 4 Parts (cont.):

Part Three – Criminal-Records Based Employment Discrimination

• Fair Credit Reporting Acts and employer responsibilities under the acts

• Federal, NY State, and NYC laws protecting against discrimination

• Other NY laws of interest8

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TODAY’S AGENDA (CONT.)Today’s training has 4 Parts (cont.):

Part Four – Housing

• Background checks and FCRA

• NYCHA & Section 8 Housing

o Section 8 is now called Housing Choice. Today’s presentation will use the term Section 8.

• Other government funded housing (brief)

• Fair Housing Act (brief)

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TODAY’S MATERIALS LAC Booklets:

Your New York State RAP Sheet

Criminal Records and Employment

Lowering Criminal Records Barriers

Changes to the Rockefeller Drug LawsLAC link: http://lac.org/index.php/lac/category/free_publications_library

Article 23-A of the NYS Correction Law

How to Gather Evidence of Rehabilitation Video: Your Rights, Your Future: Preparing for

Reentry:http://vimeo.com/14365413

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http://lac.org/index.php/lac/category/free_publications_library

http://lac.org/index.php/lac/category/free_publications_library

http://vimeo.com/14365413

http://vimeo.com/14365413

CRIMINAL RECORD HISTORY (“CRH”)

PART ONE

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CRH: CRIMINAL RECORDS

The Legal Action Center . . .

Fingerprints eligible clients;

Provides a workshop about:

Understanding criminal history info;

Collateral consequences; and

Certificates of Rehabilitation12

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CRH: CRIMINAL RECORDS (CONT.)

Legal Action Center also . . .

Provides the client with a RAP sheet;

Summarizes RAP sheet; and

May answer questions and help correct errors on the RAP sheet

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CRH: WHERE IS IT? WHO MAINTAINS IT?

Two Questions:

1. Where is one’s criminal record history located?

AND

2. Who maintains it?

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(CONT.)In New York State . . .

1. Division of Criminal Justice Services (“DCJS”)

• Official “RAP” Sheet

2. Office of Court Administration (“OCA”)

• OCA Record

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(CONT.)

DCJS RAP sheet can ONLY be obtained by the individual or by entities that have statutory authority to get them

OCA report can be obtained by ANYONE, for a fee ($65)

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(CONT.) A NYS DCJS RAP Sheet is:

official

fingerprint based

One must have statutory authority to obtain a RAP sheet.

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(CONT.) An OCA report is NOT a RAP sheet!

It is not fingerprint-based

It is a report of court records

It includes information on summons cases

It should not include information about arrests that did not lead to prosecution

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(CONT.) FBI also maintains national RAP sheets

Fingerprint-based

Accessible only by authorized agencies

Information reported to DCJS automatically reported to FBI

If NYS RAP sheet has problems, likely that FBI RAP sheet will too

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CRH: BACKGROUND CHECK SOURCES – EMPLOYERS

Where is a potential employer

likely to get information from?

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CRH: BACKGROUND CHECK SOURCES – EMPLOYERS (CONT.)

Where do NYS and NYC government employers obtain criminal record information?

If they have the authority to fingerprint applicants (e.g., OPWDD, DOH, etc.), the information comes from NYS DCJS and, if they have the authority, from the FBI.

Not every agency has the authority to fingerprint applicants.

Some agencies obtain information from OCA.

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CRH: BACKGROUND CHECK SOURCES – EMPLOYERS (CONT.)

Where do private employers typically get their information from?

Commercial background check companies

NYS OCA

NYS Department of Corrections “inmate lookup”

This is NOT an accurate source of criminal record information

Some private companies maintain their own databases

Some local law enforcement agencies sell information

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CRH: BACKGROUND CHECK SOURCES – HOUSING

Landlords may get their information from:

Commercial background check companies

NYS OCA

NYS Department of Corrections “inmate lookup”

This is NOT an accurate source of criminal record information

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CRH: RAP SHEETS

Every person with a criminal history should obtain a copy of his/her most recent RAP sheet because:

Many people DO NOT accurately remember their criminal record.

• So likely to provide incorrect information on job or housing application. May be denied a job or housing for lying.

There may be MISTAKES on the RAP sheet that can be corrected.

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CRH: RAP SHEETS (CONT.)

DCJS RAP Sheets that employers see (those allowed to receive it by contract and law) are different than the RAP sheets provided to the individuals themselves.

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CRH: RAP SHEETS (CONT.)

Employer RAP Sheets include less information. They DO NOT include:

Cases that were terminated favorably and sealed (e.g., dismissals, declined to prosecute, etc.)

Sealed violation-level convictions

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POLL #1

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CRH: RAP SHEETS (CONT.)POLL:• Joe applies for a job. The potential employer asks him for a copy of his RAP sheet instead of permission to run a background check. Should he provide it?

a. Yesb. No

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CRH: RAP SHEETS (CONT.)ANSWER:

b. No. Individuals should not present their own RAP sheets to employers or landlords, even if asked. They may include sealed or otherwise confidential information.

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CRH: RAP SHEET ERRORS & CORRECTIONS

Our data shows more than 1/3 of RAP sheets have apparent errors or information that could be sealed.

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(CONT.) What types of errors occur

on RAP sheets?

What can be done to correct them?

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(CONT.)

Let’s talk about 5 typical RAP sheet errors and what can be done about them.

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(CONT.)1. Missing Disposition – Entry shows a

case was filed but no resolution.

May appear that a client has an open case when s/he does not.

Client can seek documentation from court showing outcome of the case and send it to DCJS.

• If court has no documentation, see next error, below. 33

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(CONT.)2. Arrest reported even when no case was

filed – Although police or DA decided not to pursue case, record of arrest appears on RAP Sheet.

May appear as if client has an open case & shows arrest charges that otherwise would not be reported to most employers.

Client can request a letter from the DA’s office stating that they declined to prosecute.

If DA’s office says that they never got case from the police, contact LAC. 34

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(CONT.)3. Cases Terminated in Client’s Favor

Are Not Sealed

Case is reported (including arrest charges) that usually should not appear

Client can see if court records indicate case should already be sealed. If not, can try to file motion to seal. 35

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(CONT.)4. Violation-Level Convictions Are

Not Sealed

Case is reported (including arrest charges) that usually should not appear.

Client can see if court records indicate case should already be sealed. If not, can try to file motion to seal. 36

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(CONT.)5. Warrants that Were (or Should Have

Been) Vacated Still Appear on RAP Sheet

Makes it appear that client is “fleeing prosecution,” and/or has open case

• This MAY NOT be an error. There may be an open warrant indicating an unresolved case.

Client should call defense attorney on case.

If an administrative error, may be able to request list of court appearances to show warrant was vacated.

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CRH: RAP SHEETS – SEALING

What does it mean if a case is sealed?

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CRH: RAP SHEETS – SEALING (CONT.)

Cases terminated in client’s favor (complete dismissals) are sealed for most purposes. The court file is sealed too. CPL § 160.50.

There are exceptions. For example, law enforcement can see the cases when considering applications for employment or gun licenses. 39

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CRH: RAP SHEETS – SEALING (CONT.) Violation-level convictions are sealed “at the

state level” and not at the court level, per C.P.L. § 160.55

Information should not be released on most background checks in NY (except for law enforcement or federal jobs).

Most employers are not allowed to ask about sealed violations and applicants do not have to disclose them.

• BUT court file is not sealed: fact of conviction is public record.

• NYCHA gets info about sealed violations and some arrests.

• Landlords can ask about sealed violations and arrests (more later).

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CRH: RAP SHEETS – SEALING (CONT.) Rockefeller drug law reform (2009)

allows for conditional sealing of limited criminal convictions where the person was mandated to complete alcohol or drug treatment. C.P.L. § 160.58

If a case is conditionally sealed, it should not appear on RAP sheets requested by most employers. Most employers are not allowed to ask about conditionally sealed convictions.

If someone thinks they might be eligible, they should contact their previous defense attorney or LAC.

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Vacating Convictions Law (2010) Survivors of “sex trafficking” can

vacate and seal resulting convictions related to prostitution. C.P.L. § 440.10(1)(i). In some cases, other convictions related to

being trafficked may be sealed as well.

A motion is required, and should be made by an experienced attorney.

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Youthful Offender (“YO”) adjudications (adjudications when client was between the ages of 16 and 18) should be confidential.

If entered properly, YO information is kept confidential and will not be sent to most employers.

Most employers are not allowed to ask about youthful offender adjudications.

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In general NYS law DOES NOT permit

expungement of any conviction.

• In very few cases, the governor can issue a pardon.

NYS law DOES NOT permit sealing of felonies or misdemeanors except in the very limited circumstances discussed.

• Rockefeller drug law reform

• prostitution-related convictions.44

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POLL #2

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POLL:

A private employer runs a background check on an applicant. Which of the following should appear? • “Paper” felony with a sentence of

probation only• Misdemeanor• Youthful offender adjudication

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Possible Answers:

A. None should appear.

B. Only the felony should appear.

C. Only the misdemeanor should appear.

D. “Paper” felony and misdemeanor should appear.

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ANSWER: D. Misdemeanor and ‘paper felony’ should

appear. MYTHS: • Many people refer to felonies that didn’t result in

prison terms as “paper felonies” and think that these won’t show up on a background check or don’t need to be reported.

• OR think that misdemeanors won’t be reported.

REALITY: • It makes no difference what the sentence was.

Unsealed criminal convictions, both misdemeanors and felonies, are reported.

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CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF MATTER

Advances in technology have created easy access to criminal records.

According to a 2010 SHRM study, approximately 92% of employers conduct criminal background checks for some potential applicants, and 73% of employers conduct criminal background check on ALL potential applicants.

Many federal and state government agencies require background checks.

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CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF PROBLEM

Credit Reporting Agencies often misreport criminal conviction information because they:

Use unreliable sources of information

Do not consult more than one record database

Use old information/Do not update information

Do not get enough identification information, so report information about the wrong people

Cut and paste without checking their work

Mislabel information50

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CRH: CRIMINAL BACKGROUND CHECKS – SCOPE OF PROBLEM (CONT.)

REMEMBER – official criminal records also may have mistakes or too much info, such as:

May be missing disposition

May list cases that are sealed and/or dismissed

Cases that could be sealed have not been

May list bench warrants that have been vacated

May contain other mistakes51

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CRH: PREPARING FOR COMMERCIAL BACKGROUND CHECKS

How can clients learn what may appear on commercial background checks?

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CRH: PREPARING FOR COMMERCIAL BACKGROUND CHECKS (CONT.)

If possible, get OCA report in advance to see what data will be available. ($65 fee)

Free report via certain large consumer reporting agencies (e.g., Hire Right, which uses (we think) OCA-furnished info: http://www.hireright.com/Consumers-Applicants.aspx

Remember that each consumer reporting agency may have different possible errors. • There are 500+ consumer reporting

agencies

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EVIDENCE OF REHABILITATION

PART TWO

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EVID. OF REHAB: HOW TO SHOW IT?

We’ve discussed criminal records, where they are recorded, and what other people will learn about them…

… NOW how to overcome barriers they create?

1. Collect evidence of rehabilitation.2. Apply for a Certificate of Relief from

Disabilities (“CRD”) or Certificate of Good Conduct (“CGC”).• If someone is undocumented, applying for

CRD or CGC may not be wise.55

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EVID. OF REHAB: HOW TO SHOW IT?

We’ll Cover . . .

What is evidence of rehabilitation and how do you show it?

What is a Certificate of Relief from Disabilities (“CRD”) and Certificate of Good Conduct (“CGC”) and how can they help?

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EVID. OF REHAB: HOW TO SHOW IT? (CONT.)

Evidence of rehabilitation can include almost any positive activities.

Educational efforts – school or training programs

Jobs or volunteer work

Recommendation letters – from jobs, school or training, service providers or personal contacts

Programs, e.g., drug treatment or anger management But this is obviously sensitive info, so depends on

whether person wants to share it.

Certificates of Relief or of Good Conduct (will discuss soon) create a presumption of rehabilitation.

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EVID. OF REHAB: HOW TO SHOW IT? (CONT.)

Collect evidence of rehabilitation in advance of applications because may need it on short notice.

Show skills, ability, character changes, and minimal risk to harm people or property.

If possible, have letters from people who know about conviction and trust you anyway.

Both quantity and quality count. 58

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EVID. OF REHAB: CRDS & CGCS

Certificates of Relief from Disability (CRDs)

&Certificates of Good

Conduct (CGCs)59

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EVID. OF REHAB: CRDS & CGCS Certificates of Relief or Good Conduct Provide:

Evidence of rehabilitation

Remove automatic bars to employment or occupational licenses

• But conviction can still be considered and asked about

Law now amended so both CRDs & CGCs should lift basically all the same bars

• Exception: Only CGC lifts the bar to “public office.”

Right to vote

• Restore right to vote (for person currently on parole – if not in prison or on parole, you have the right to vote)

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EVID. OF REHAB: CRDS

Eligibility for a CRD:

Felony conviction on no more than 1 date.

Any number of misdemeanors.

Certificate only applies to conviction for which it was granted.

There is no waiting period before applying.

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EVID. OF REHAB: CRDS (CONT.) To Apply for a CRD:

Apply to court of conviction if never went to state prison. Can request at sentencing.

Apply to parole if served prison time (even if never on parole). Can apply after release, even if still on parole.

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EVID. OF REHAB: CGCS

Eligibility for a CGC:

Two or more felony convictions (convictions were on different dates)

If have fewer convictions, but need CGC instead of CRD, can still apply.

One CGC covers entire conviction history

Waiting periods before eligible to apply:

• Class A or B felonies – 5 years• Class C, D or E felonies – 3 years• Misdemeanors – 1 year

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EVID. OF REHAB: CGCS (CONT.) To Apply for a CGC:

Once the required waiting period of three years or five years has passed, download an application at :

• https://www.parole.state.ny.us/pdf/parolecert.pdf; or call and ask parole to send you an application at (518) 485-8953.

Complete the form and return to Parole. If you have worked in the last three years, you must provide proof that you paid income taxes.

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EVID. OF REHAB: CGCS (CONT.) To Apply for a CGC:

Once the required waiting period of three years or five years has passed, download an application at :

• https://www.parole.state.ny.us/pdf/parolecert.pdf; or call and ask parole to send you an application at (518) 485-8953.

Complete the form and return to Parole. If you have worked in the last three years, you must provide proof that you paid income taxes.

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CRIMINAL-RECORDS BASED EMPLOYMENT DISCRIMINATION

PART THREE

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EMP. DISCRIM: BACKDROP Mass Incarceration

Nearly 65 million adults (almost 1 in 4) in the United States has some sort of criminal record (NELP, 65 Million Need Not Apply, March 2011)

Use of criminal background check information disproportionately affects people of color 67

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EMP. DISCRIM: LAWS?

Are there any laws that help protect job applicants and employees who have criminal records?

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EMP. DISCRIM: LAWS? (CONT.)

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YES!!! There are laws that cover contents and use of

background checks.

the fair credit reporting acts (“FCRAs”), including both the Federal Fair Credit Reporting Act (“Fed. FCRA”) and the NYS Fair Credit Reporting Act (“NYS FCRA”).

There are laws that protect job seekers and employees from discrimination.

NYS Correction and NYS & NYC Human Rights laws; Title VII of the federal Civil Rights Act.

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EMP. DISCRIM: FCRAS

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What criminal record information can be included in a commercial background report?

Under NYS law, Cannot include information about violations

(sealed or unsealed). Can include information about criminal

convictions (but not violations) no matter how old UNLESS:

• Position pays less than $25K per year. Then 7 year limit after the date of disposition, release or parole.

• BUT there is no law preventing the employer from asking about convictions before that time.

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EMP. DISCRIM: EMPLOYER RESPONSIBILITIES UNDER BOTH FCRAS (CONT.)

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Let’s talk about 3 responsibilities of employers under both FCRAs (federal and state)

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1. Employer may only get and use background report for “employment purposes,” including:

• Hiring

• Promotion

• Reassignment

• Retention

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2. Must get applicant’s (or employee’s) permission in writing before ordering a background check.

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3. If the employer plans to “take adverse action” based at least in part on the report, employer must give applicant (or employee), a copy of the background report, and a copy of the “Summary of Consumer Rights” published by the Federal Trade Commission (FTC), before taking adverse action.

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What is an adverse action?

Includes:

• Denying the job

• Terminating an employee

• Deciding not to promote an employee

• Demoting an employee

• Reassigning an employee

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How far in advance of actually taking the “adverse action” must an employer send out the background check?

No set time under the law

Sending out report and denial at same time does not comply with the law

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EMP. DISCRIM: FCRAS (CONT.)

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What if the report includes mistakes?

Applicant has the right to insist that the credit reporting agency:

• Corrects the reportAND

• Sends the employer the corrected information

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POLL #3

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POLL:Marla applies for a job and signs a written consent for a background check. Potential employer later calls her and says, “We just received the report and see you were convicted of petit larceny, is that true?” It is true, and Martha says so. She is then denied the job. Were her rights violated under FCRA?

a. Yes

b. No

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ANSWER:

Yes, Marla’s rights were violated. Marla did not receive written pre-adverse action notice days before being denied the job based on her background check.

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EMP. DISCRIM: LAWS PROTECTING AGAINST DISCRIM.

1. Federal Law2. New York State3. New York City

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EMP. DISCRIM: FED. ANTI-DISCRIM. LAWS

No specific employment anti-discrimination protections under federal law for people with criminal records, but . . .

New April 2012 EEOC guidance: An employer may violate Title VII of the Civil Rights Act of 1963 and discriminate based on race and national origin by considering arrest or conviction records too heavily when deciding whether to hire or retain employees.

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EMP. DISCRIM: NY ANTI-DISCRIM. LAWS

Corrections Law Article 23-A

NYS Human Rights Law

NYC Human Rights Law

Negligent Hiring Law

Employer Education Act83

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EMP. DISCRIM: NY ANTI-DISCRIM. LAWS (CONT.)

What is Correction Law Article 23-A?

It’s NY Correction Law §§ 750-755

Describes employers’ rights and responsibilities for evaluating people with criminal record histories.

Law applies to public or private employers, job or licensure applications, promotions, reassignments or retention. 84

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A violation of Article 23-A is a violation of NYS Human Rights Law and the NYC Human Rights Law (it’s an unlawful discriminatory practice).

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Article 23-A applies to public and most private New York employers and licensing agencies.

It does not apply to the federal government or non-New York government employers, e.g., Port Authority.

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Applicant or current employee may not be denied job or license or acted adversely upon because of conviction records unless:

1. There’s a direct relationship between conviction and job or license sought, or

2. Hiring or licensure would create an unreasonable risk to property or public or individual safety.

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NYS Correction Law § 753

8 factors an employer must consider when evaluating conviction history:

1. Public policy of NYS encourages licensure & employment of people with criminal records;

2. Specific duties & responsibilities related to the license or employment;

3. Bearing of the criminal offense on person’s fitness or ability to perform duties;

4. Time elapsed since the criminal offense;

(Next Slide . . .)

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8 factors (cont.):

5. Person’s age at the time of the criminal offense;

6. Seriousness of the offense(s);

7. Any information produced by applicant to show rehabilitation; and

8. The legitimate interest of the public employer in protecting property, and the safety and welfare of specific individuals or the general public.

NOTE: CRDs or CGCs create a presumption of rehabilitation 89


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NYS & NYC Human Rights Laws

Most employers . . . may not ask about arrests that did not lead to

conviction

may not ask about youthful offender adjudications

may not ask about sealed violation convictions

may not ask about convictions sealed under Rockefeller Drug Reform and sealed under the Vacating Convictions Law

EXCEPT for federal government or law enforcement positions.

And applicants do not have to disclose any of the above to most New York employers, except for federal government or law enforcement positions.

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POLL #4

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POLL:

An application asks, “Have you ever been convicted of any offense?” Is this a legal question?

a. Yesb. No

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A NSWER:

b. No. Although the question only asks about convictions, it does not exclude sealed convictions.

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How do these laws work in practice?

Employer may not have a flat policy—

“We don’t hire people with criminal records.”

“We fire anyone who has a criminal record, even if we never asked about it before.”

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Under New York law, what must an employer do when considering a job applicant with a criminal record?

Employer must evaluate each job applicant individually, considering more than the criminal record.

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If an individual with a criminal conviction history is denied employment or license, can an inquiry be made as to the reason?

Yes. If a person previously convicted of one or more criminal offenses is denied a license or employment, s/he can request that a public agency or private employer provide, within 30 days of request, a written statement of the reasons for denial.

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EMP. DISCRIM: POTENTIAL REMEDIES Informal Resolution/Negotiation

OR File A Complaint/Charge with an Administrative Agency• NY State Division of Human Rights

• 1 year Statute of Limitation (SOL) – Complaint should be filed within one year after the alleged unlawful discriminatory practice

• NYC Commission on Human Rights• 1 year SOL - Complaint should be filed within one year of the last

alleged act of discrimination

• EEOC- 300 days from the day the discrimination took place- There are nuances relating to an EEOC claim

OR• File a Lawsuit Directly Asserting NYS/NYC anti-discrimination

claims already discussed- 3 year SOL

Note: Can only assert Title VII claim (federal claim) if you go through administrative process

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NYS Negligent Hiring Law (2008)

Where an employer hires an employee after reviewing his or her conviction history using the factors required by Article 23-A (NYS Correction Law), if there is later a negligent hiring lawsuit involving that employee, a rebuttable presumption exists in favor of excluding evidence of applicant’s criminal record or incarceration history. N.Y. Exec. Law § 296(15).

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EMP. DISCRIM: OTHER NY LAWS

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NYS “Employer Education Act” (2008)

Requires employers and potential employers to include a copy of Article 23-A of the Correction Law (NYS anti-discrimination law, protecting job seekers with criminal records from unfair discrimination) when providing a consumer report containing criminal conviction information to a third party, and requires prominent posting of Article 23-A in various places of employment. 99

EMP. DISCRIM: OTHER NY LAWS (CONT.)

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HOUSING

PART FOUR100

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HOUSING: GENERALLY

Is it legal to deny someone housing because of a criminal

record?

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HOUSING: GENERALLY (CONT.)

There is NO federal or New York State law that expressly prohibits housing discrimination based on a criminal record.

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HOUSING: BACKGROUND CHECKS

Fair Credit Reporting Acts (FCRAs) create some requirements.

All landlords must tell an applicant if they are going to get his/her criminal background report through a background check company.

Landlords also must tell the housing applicant if they deny housing because of the background check and give the applicant contact information for the background check company.

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HOUSING: BACKGROUND CHECKS (CONT.)

FCRA requirements for consumer reporting agencies:

Must give an individual a free copy of the report if the applicant asks for it within 60 days of the housing denial.

If there are mistakes in the background check, the applicant can send proof to the background check company and demand that it correct the report. The company must investigate, make corrections and tell the applicant the result.

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HOUSING: BACKGROUND CHECKS (CONT.)

If a landlord and/or background check company does not follow these laws, the applicant may be able to file a complaint.

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HOUSING: NEW YORK CITY HOUSING AUTHORITY (“NYCHA”)Eligibility for Admission

Federal law prohibits housing authorities from admitting people if any household member:

Has ever been convicted of manufacture or production of methamphetamine on the premises of federally assisted housing.

Is subject to a lifetime sex offender registration requirement or for 60 months from the date a person is removed from a sex offender list.

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HOUSING: NYCHA (CONT.)

Federal law gives local housing authorities the discretion to exclude people whose history of criminal activity . . .

“would adversely affect the health, safety, or welfare of other tenants.”

Following this, NYCHA’s policies disqualify people who it determines “threaten the health and safety of NYCHA residents and property.” 107

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Whose criminal record affects eligibility for public housing?

Every proposed household member aged 16 or over

Absent parents (unless they will be incarcerated for at least 10 years from date of ineligibility interview)

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Which conviction can potentially disqualify people from NYCHA?

Felonies, misdemeanors, violation, DWI – regardless of nature of conviction (e.g., need not be drug-related)

NYCHA “overlooks” some minor convictions.

Most convictions potentially disqualify households for a certain number of years after completion of sentence:

• Start counting after the end or parole or probation.

• If either is terminated early, start counting from termination date, not original expiration date.

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Waiting Periods for Felonies:

Class A, B, or C: 6 years

Class D or E: 5 years

. . . and no further convictions or pending charges

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Waiting Periods for Misdemeanors:

Class A:

• 4 years – if 1 or 2 within last 10 years

• 5 years – if 3 or more within last 10 years

Class B or unclassified:

• 3 years – if 1 or 2 within last 10 years

• 4 years – if 3 or more within last 10 years

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Waiting Periods for Violations or DWI Infractions:

2 years – if 1 or 2 convictions

3 years – if 3 or more of any type of conviction within last 10 years

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HOUSING: SECTION 8

Section 8 (now called Housing Choice) is administered by NYCHA. Section 8 applicants are only potentially disqualified for:

Felony convictions for violent or drug/alcohol related crimes; and

Misdemeanors, violations and DWIs related to drugs/alcohol.

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HOUSING: NYCHA & SECTION 8

Even if a household member has a conviction that falls within the bar . . .

Can qualify if show rehabilitation and other evidence why person is not a threat to health/safety of residents. 114

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HOUSING: NYCHA & SECTION 8 NYCHA must consider these 6 factors:

1. Seriousness of the offense;2. Frequency of the offense;3. When the offense occurred;4. Conduct underlying the offense;5. Rehabilitation since the offense;

and6. Participation in counseling or

social service programs designed to correct the offending behavior. 115

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How do you prove “rehabilitation”? Applicants should collect the best evidence

of rehabilitation that they can, and be able to:

• Accurately describe their convictions & underlying circumstances

• Explain how they have been rehabilitated

See “How to Gather Evidence of Rehabilitation,” available on our web site, www.lac.org. 116

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http://www.lac.org/

HOUSING: NYCHA & SECTION 8 Also see “How to Get Public Housing or

Section 8 Even if You Have a Criminal Record,” available free at: http://lac.org/doc_library/lac/publications/How_to_Get_Section_8_or_Public_Housing.pdf

It is a big file, so it may take some time to download.

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POLL #5

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POLL:

A NYCHA applicant was released from parole for a D felony three years ago. What should she do?

a. Decide she’s out of luck b. Wait 2 yearsc. Request a hearing

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HOUSING: NYCHA & SECTION 8ANSWER:

C. Request a hearing! Ineligibility determinations can be overcome.

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HOUSING: OTHER GOV’T FUNDING

Some protections also apply to private apartments that get government funding and charge reduced rent.

• For example, many landlords who get funding from the U.S. Department of Housing and Urban Development (“HUD”) must have – and make available – a written “tenant selection plan” explaining how they decide whether to admit people with criminal records.

If such landlords deny an applicant housing because of his/her criminal record, they must give the applicant a written explanation of why the applicant was denied and a chance to challenge the denial.

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HOUSING: FAIR HOUSING ACT Denying housing based on a criminal record

might be a form of race discrimination that violates the Fair Housing Act because of the higher rates of arrest and conviction for people of color BUT no court has ruled on this.

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HAVE QUESTIONS?

Call the Legal Action Center

212-243-1313

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Feedback?

Please return the evaluation to get Certificate of Attendance.

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Have you registered?Thank you for completing this webinar!If you haven’t officially registered with the NYS Department of Health AIDS Institute, http://www.hivtrainingny.org/ please sign up!

Get credit for your attendance!

Contact Vanessa Severino at [email protected]

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mailto:[email protected]

Thank you!

This concludes the training.

And thanks to the AIDS Institute, New York State Department of Health.

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Date post:	23-Dec-2015
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OVERCOMING BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS LEGAL ACTION CENTER 2014 1.

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