Employer Faces Criminal Background Check Suit Under New York Law

A new proposed class action recently filed in the U.S. District Court for the Southern District of New York focuses on an employer’s use of criminal history information. According to the complaint, both named plaintiffs were denied employment based on their criminal history without the employer engaging in an interactive process such as requesting evidence of rehabilitation.

More specifically, the complaint alleges the employer’s hiring policies related to criminal history do not comply with New York law including consideration of the Article 23-A factors. Instead, the employer allegedly disqualifies candidates using “categorical bans on wide swaths of convictions.” Notably, the complaint claims the employer’s criminal record policy includes a statement that it weighs most heavily factors 2, 3, 6 and 8 of the eight factors set forth in Article 23-A. The employer’s policy also allegedly includes established categories of convictions that “may presumptively disqualify” candidates.

Finally, the plaintiffs allege the employer’s practices violate the New York City Human Rights Law which requires compliance with Article 23-A and a specific process to be followed prior to disqualifying an individual based on his or her criminal conviction(s).

As noted in a prior post regarding a recent lawsuit against a nationwide bank for its use of criminal history information, employers are encouraged to work with qualified legal counsel to conduct a review of their hiring practices particularly around the use of criminal history information. After all, as more and more ban the box and fair chance laws are passed, the emphasis continues to be on providing second chances to those individuals with a prior criminal history.