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Employer Faces NYC Fair Chance Act Class Action

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One of the more popular trends to emerge over the past 18 months is litigation against employers based on their use of criminal history information. Nowhere is this trend more evident than New York—
particularly in New York City.

Overview

New York City’s Fair Chance Act (FCA) is by far one of the most complex criminal history use laws facing employers. The New York City Commission on Human Rights has also been one of the most active enforcement bodies to date. Beyond this enforcement, we’re now seeing more private lawsuits filed against employers.

One of the more recent lawsuits was filed in the beginning of March against a hospitality trust that owns 16 hotels in NYC. As alleged in the complaint, the named plaintiff began employment at one of these hotels. Several days into his employment, he allegedly was told by the employer “[s]orry, we found out that you have a criminal background, so we’re going to let you go.” He also then received an adverse action notice rescinding his employment.

Alleged Violations

The complaint includes a number of alleged violations of city and state law:

  • Fair Chance Act allegations:
    • Conducted a background check before extending a conditional offer
    • Asked about or inquired into conviction history
    • Failed to provide an Article 23-A analysis and invitation to respond within a reasonable time frame (instead proceeding to a final adverse action notification)
  • New York state law:
    • Relied on a consumer report without providing a printed or electronic copy of Article 23-A.

As a result of these alleged failures, the plaintiff did not have the opportunity to provide evidence of good conduct and rehabilitation to demonstrate why he was a good fit for the role despite his criminal history. The complaint further argues the plaintiff served in the role for a week without any complaints.

Given the complexities of the NYC FCA and this litigation trend, we strongly encourage employers to consult with qualified legal counsel and conduct a review of their compliance with this challenging law. 

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