Q: Can my friend answer "no" to this question?

A: This is a tricky area when discussing job applications requesting information of past convictions. You state that the Disorderly Conduct violation conviction was sealed [that should be confirmed with the court to make sure it was done]. The Legal Action Center in NYC advises what to do in the following situation:

" Q: Have you ever been convicted of a crime? If so, explain.

A: If you have any arrests that ended in an unsealed felony or misdemeanor

conviction, answer “YES.” List all unsealed misdemeanor and felony

convictions but do not list anything else.

Answer “NO” if all your arrests ended in offenses (violations or

infractions), dismissals, or JD or YO adjudications.

If you have only sealed felony or misdemeanor convictions, we believe

you should be able to say “no” because the law says that an employer is not

allowed to ask about this information or use it in making employment

decisions AND that you do not need to disclose the information if

asked. BUT no court has ruled whether you can say “no” in response to

this illegal question."

A: Your friend's situation involves the application of New York's laws regarding sealed records and their implications for background checks. Here's an explanation tailored to their question.

Under New York Penal Law § 240.20, disorderly conduct is classified as a violation, not a misdemeanor or felony. It is considered a non-criminal offense under state law. When a person is convicted of a violation, including disorderly conduct, the record is typically sealed after the conviction is satisfied (e.g., completion of any fines or other conditions) under Criminal Procedure Law (CPL) § 160.55.

Sealing a record means that it is no longer publicly accessible. For most purposes, individuals are not required to disclose sealed convictions on applications or during background checks. However, there are some exceptions where sealed records can still be accessed.

The question your friend received asks about convictions for felonies, misdemeanors, infractions, or violations within the past 10 years, excluding traffic violations. Since disorderly conduct is a violation and the record is sealed, your friend can likely answer "no" to the question. Sealed records are generally treated as though they do not exist for most purposes, including employment applications.

While sealed records are not publicly available, there are exceptions under New York law:

--Law Enforcement and Judicial Use: Sealed records can still be accessed by law enforcement agencies, prosecutors, and courts under certain circumstances.

--Certain Employers: Employers in sensitive industries, such as aviation, law enforcement, or child care, may have access to sealed records through specific background check processes. For example, if the employer is conducting a background check through the Transportation Security Administration (TSA) or the Federal Aviation Administration (FAA), it is possible they could access sealed records under federal law.

If the aviation employer conducts a standard employment background check, it is unlikely that the sealed record for disorderly conduct would appear. However, if the employer uses federal databases or specialized checks allowed for aviation security purposes, they might be able to access the sealed record.

Your friend should proceed carefully when answering the application question. If they are uncertain whether the record will appear in a background check, they may want to consult with an attorney to confirm the specific circumstances. Additionally, if the employer asks follow-up questions or requests additional information, your friend should be prepared to provide an explanation if needed.

Disclaimer: This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified attorney licensed in New York.