All official records and papers relating to your arrests, prosecutions, and convictions on file with the Division of Criminal Justice Services (“DCJS”) or any court will be sealed and will not be available to most people, employers, and agencies. Records of your sealed cases should not show up on most background checks or on most RAP sheets.

Some agencies and employers will have access to your sealed records if they request them from the court. The following agencies and employers may access your sealed records:

• “Qualified agencies” (defined in Exec. Law § 835(9)), including courts and corrections departments, for law enforcement purposes
• Federal and state law enforcement for law enforcement purposes
• State entities responsible for issuing firearm licenses
• Employers when you apply for a peace officer or police officer job
• FBI for background checks related to firearms
• Courts can still access your sealed convictions and may count them for the purpose of sentence enhancement or for establishing the elements of a subsequent crime.

DCJS sometimes fails to properly seal convictions. If convictions are not properly sealed, they may still show up in court databases and on background checks. As such, it is a good idea to contact DCJS to verify that your convictions are properly sealed.

The verification form can be found here. You can send the form, along with the orders of sealing, to DCJS via mail.

In New York State, most employers and licensing agencies are not allowed to ask about or discriminate against you on the basis of your sealed convictions. Unless the employer or licensing agency falls into an exception, it is illegal for them to ask you about or discriminate against you based on your sealed convictions. The exceptions are:

• If you are applying for a weapons license,
• If you are applying to become a police officer or peace officer,
• If you are applying to work for a law enforcement agency,
• If you are applying to work for the federal government or you are applying for a license issued by the federal government, or
• If you are applying for a job or license regulated by the federal government, and the federal government permits or requires the job or licensing agency to ask about sealed convictions.

If an employer or licensing agency not covered by an exception asks if you have a criminal conviction or if you have ever been convicted of a crime, New York law permits you to answer “no” if all your criminal convictions have been sealed. If one of your convictions is still unsealed, New York law permits you to disclose only the unsealed conviction.

If you are applying for a position or license that is an exception to Executive Law § 296(16) (see above for a partial list of exceptions), you must disclose your sealed convictions on any question asking about prior arrests or prior convictions.

If you don’t disclose your sealed convictions when the employer or agency asks about your criminal record, there is a small risk that the employer or agency will improperly find out about them. If this happens, the employer or agency may threaten to deny you employment or take other action against you based on your alleged “dishonesty.”

If this happens, you should explain to the employer or agency that it is illegal for them to ask about sealed convictions and that you provided all information you were legally obligated to provide. If the employer or agency continues to illegally deny you employment or licensure or take other action against you on the basis of your failure to disclose your sealed convictions, you may have the right to take legal action against them. If you would like assistance defending your rights, contact The Legal Aid Society’s Worker Justice Project by calling 888-663-6880 or emailing WorkerJustice@legal-aid.org.

Sealed convictions should not show up on any background check run by an employer or licensing agency, unless you are applying for a job as a police officer or a peace officer or you are applying for gun license.

If there is a mistake on your background check, follow the steps discussed in The Legal Aid Society’s pamphlet Know Your Rights: What You Need to Know About Correcting Background Check Errors.

The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.