A former New York City hotel employee has recently filed a proposed class-action lawsuit against the real estate investment trust owning the hotel and 15 other hotels, alleging discrimination against certain employees through its use of criminal history screenings. The lawsuit alleges that the trust violated New York City’s Fair Chance Act by failing to provide the plaintiff with a copy of Article 23-A, which provides a detailed explanation of the circumstances for rejecting a candidate for employment on the basis of their criminal history.
In the complaint filed with the court, the plaintiff states that he filed an online application to work at one of the employer’s hotels. He was subsequently called for an interview and was hired. He began working for the company, but approximately one week later, he arrived at work only to find his position had been filled by another individual, and he was subsequently informed by the company’s general manager that he had been terminated due to discovering criminal history in a background check.
According to the complaint, this was in violation of the New York City Human Rights Law as amended by the city’s Fair Chance Act and the New York Fair Credit Reporting Act. The former act makes it unlawful discrimination to consider an applicant’s criminal history without first extending a conditional offer of employment and then following certain procedures when performing an inquiry. This includes demonstrating a direct relationship between the specific criminal history and the position in question and demonstrating that the link would present an unreasonable risk to property, the welfare of particular individuals, or the general public.
In order to do this, an employer must justify the decision to deny employment on the basis of eight factors under Article 23-A, which include considering the position’s duties, the individual’s ability to perform them, the time that has elapsed since a criminal offense, and any evidence of rehabilitation. The employee must then be provided with a copy of the analysis and given a chance to respond and submit any evidence of rehabilitation and good conduct.
According to the lawsuit, the plaintiff was not provided with a copy of the analysis or given time to respond to the decision before being terminated. If given the opportunity, the lawsuit alleges that he could have presented evidence of his good conduct and rehabilitation, which could have offset any “negative inferences Defendants drew from his conviction history.”
As this case clearly illustrates, New York City’s laws regarding the performance of a background check can be complex. In order to remain compliant and avoid potential liability, it is important to partner with a background check provider you can trust to remain compliant with the current laws and regulations.