Articles Posted in Criminal History

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Edgar M. Rivera, Esq.

In Griffin v. Sirva Inc., the New York Court of Appeals announced how New York State Human Rights Law § 296 (Section 296) should be interpreted with respect to employer and nonemployer liability for criminal conviction discrimination. Griffin involves two former employees of Astro Moving and Storage Co. Inc. (Astro), Tranthony Griffin and Michael Godwin. Griffin and Godwin sued Astro, a moving and storage company; Allied Van Lines, Inc. (Allied), a nationwide moving company with whom Astro had contracted to perform moving services­; and Sirva Inc. (Sirva)­, Allied’s parent company, for discriminating against them by terminating their employment for failing to pass Allied’s criminal background screen due to prior criminal convictions for sexual offenses.

After hiring Griffin and Godwin, Astro contracted with Allied to perform moving services. The contract required Astro to adhere to Allied’s Certified Labor Program guidelines, which provide that employees who “conduct the business of Allied at customer’s home or place of business […] must have successfully passed a criminal background screen […] as specifically approved by Allied.” If Astro violated these guidelines by using unscreened labor, it was subject to escalating monetary penalties. Under the Certified Labor Program guidelines, employees automatically failed the criminal background screen if they had ever been convicted of a sexual offense. In 2011, Griffin and Godwin consented to have Sirva investigate their criminal records, which identified their convictions, and Astro terminated them shortly afterward. Griffin and Godwin sued Astro, Allied, and Sirva, alleging criminal conviction discrimination under Section 296.

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Lev Craig and Shelby Krzastek

Earlier this week, on March 6, 2017, class members and McDonald’s management requested final approval of a $950,000 proposed settlement in James Wesley Carter v. Shalhoub Management Co., et al., a class action filed in the U.S. District Court for the Central District of California. The approximately 2,300 class members allege that Shalhoub Management Co. (“Shalhoub”), a California-based McDonald’s franchise operator, did not comply with its obligations under the Fair Credit Reporting Act (“FCRA”) when it conducted background checks on employees and job applicants without their knowledge and used those background checks to determine whether to hire or terminate those individuals.

The FCRA is a comprehensive statute that regulates how consumer reporting agencies store, disseminate, and use consumer information. Under the FCRA, employers requesting background information, such as credit reports or criminal background checks, from job applicants must get the applicant’s written permission and inform applicants in writing—in a separate notice not included in the employment application—that the results of the background check may be used to make employment decisions. If an employer then takes an adverse action against an employee or refuses to hire a job applicant based on the received background information, the employer must provide the employee or applicant with a copy of the relevant report, inform the individual that they were rejected or terminated based on the report, and provide an opportunity to dispute or explain any inaccurate or negative information.

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Yarelyn Mena

Employment discrimination can occur at the application stage; an individual does not need to be a current or former employee to bring a discrimination claim. It is important for everyone in the labor force to know that prospective employees are also protected by antidiscrimination laws.

Prospective employees generally do not attend a job interview on the alert for an interviewer’s discriminatory questions but, according to a survey conducted by the job search website CareerBuilder, twenty percent of hiring managers ask “off-limits” questions during interviews. The following is a list of ten categories that candidates should be weary of if interviewers breach these topics. It is important to note that although many of these questions are not explicitly illegal to ask, they give rise to an inference of discrimination.

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Lucie Rivière 

In our June 15, 2015 blog, “New York City Is One Step Closer to Giving Ex-offenders a ‘Fair Chance’ at Employment,” we wrote that The New York City Council had enacted The Fair Chance Act (“FCA”), which limits employment discrimination based on an arrest record or criminal conviction. The FCA took effect on October 27, 2015. On November 5, 2015, the New York City Commission on Human Rights (“the Commission”)—the executive agency responsible for enforcing the FCA— issued its “Legal Enforcement Guidance on the Fair Chance Act” (“the Guidelines”). Today’s blog examines the recently published guidelines, which aim to clarify the FCA’s requirements and prohibitions.

The Guidelines reaffirm the FCA’s legislative intent to protect individuals with criminal convictions from employment discrimination; it reminds employers that, although the FCA does not prevent employers from inquiring into applicant’s criminal record, if they do so, employers must carefully follow the Guidelines. The Guidelines then clarify a number of terms referenced in the FCA or in the Guidelines themself. Importantly, the Guidelines provide the list of four chargeable per se violations, which are separate, chargeable violations of the New York City Human Right Law (“NYCHRL”):

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Lucie Rivière

On November 1, 2015, President Obama, by executive order, took a significant step against the discrimination against former convicts in the hiring process for federal jobs.

Securing work after being incarcerated is an important step in a former inmate’s reintegration into his or her community, and every year, hundred of thousands of Americans are released from state and federal prisons. Frequently, finding work is one of the most difficult obstacles for former inmates to overcome. According to the Center for Economic and Policy Research, in 2010, only 40% employers said they would consider hiring candidates who had a committed a crime—even if the candidate had more experience and a stronger resume than other applicants.  Unsurprisingly, a 2010 study from the National Institute of Justice (“NIJ”) found that between 60% and 75% of ex-convicts were still unemployed a year after their release.

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Ciera Ambrose and Owen H. Laird, Esq.

Today’s job market is tough on everyone, but it’s especially hard for a person with a criminal conviction to get hired. When applying for a job, applicants are often asked about their work history, education, and criminal record. However, when answering the question, “have you ever been convicted of a crime?” applicants who respond truthfully about their past convictions are less likely to get hired, let alone get a call back.

This hiring trend has sparked a movement called “Ban the Box,” initiated to reduce the employment barriers facing ex-offenders, and to challenge the stereotypes of those with conviction histories by supporting hiring practices based on merit, such as job skills and qualifications, not past convictions.

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Yarelyn Mena and Edgar M. Rivera, Esq. 

Many companies require their job applicants to undergo criminal conviction checks as part of the hiring process, and use that information to make hiring decisions. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against job applicants based on a protected class; however, discrimination does not need to be intentional—Title VII also prohibits “disparate-impact” discrimination. One way employers violate Title VII is if they have a blanket policy disqualifying all applicants with criminal convictions, the policy has a disparate impact, and the disqualification is not job-related or consistent with a valid business necessity.

A company’s facially neutral rule may be illegal when the rule disparately impacts a protected class and is neither job-related nor consistent with a valid business necessity. In anti-discrimination law, a protected class is a characteristic of a person that cannot be targeted for discrimination, for example, race, color, religion, and national origin. Any discrete group can be disparately impacted. For example, a police department that imposes a height requirement may unintentionally exclude many women, who generally are shorter than men, from the position, although they otherwise are qualified for the position. Accordingly, the police department’s rule violates Title VII if the department cannot show that police offers must be tall to perform the various functions police work requires, which is unlikely to be the case.

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EDIT: Please note that The Harman Firm, LLP, is NOT counsel in this action. According to the complaint, the plaintiffs in this lawsuit are represented by Francis & Mailman PC and Gordon Wolf & Carney. The case is Mitchell v. Aerotek Inc., et al., Case No. 1:14-cv-03691, in the U.S. District Court for the District of Maryland. 

On November 25, 2014, Plaintiff Michael Craig Mitchell filed a lawsuit, on behalf of himself and a potentially huge class of similarly-situated individuals, against employment agency Aerotek, Inc., an operating company of Allegis Group, Inc. In their complaint, plaintiffs allege that Aerotek routinely required prospective employees to authorize the company to acquire their “consumer reports,” including information about criminal history. Plaintiffs allege that in some cases–probably many–the company took adverse employment action on the basis of the reports, without providing the required notice to the employees or allow them sufficient time to correct errors in their reports. The Fair Credit Reporting Act (FCRA) requires employers to provide a copy of any background report prior to taking any adverse action on the basis of that report, and to do so in time for the prospective employee to rectify any inaccuracies in the report.

In this case, Aerotek offered Mr. Mitchell a position at their client United Health Care, starting in early November 2012. Aerotek then requested his a consumer report on or around November 20, 2012 and On November 30 received a criminal background report for Mr. Mitchell. This report contained extensive personal information, including information about two felony and three misdemeanor convictions, all information about other people which was falsely attributed to Mitchell. That same day, an Aerotek representative informed Mitchell that he could no longer work at United health Care because of what they learned from his background report.

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On May 20, 2014, and effective starting on November 18, Rochester became the second city in New York, after Buffalo, to “ban the box“–that is, to make it illegal for all employers to ask job applicants about their criminal background.

The principal goals of these new regulations have to do with reducing the cost of the criminal justice system. It is well known that a stunningly high percentage of people in the U.S. prisons and jails are extremely overcrowded, and our recidivism rate–the percentage of prisoners who end up back in prison–hovers around 52%. As Buffalo Councilmember Adam C. McFadden notes, since “one of the leading factors in preventing recidivism is employment, this measure will help to eliminate discrimination against ex-offenders and help put people to work.” When employers exclude all candidates with criminal history at the first stage of the application process, people with former felony convictions or arrest records have little chance of reintegration and a far greater risk of re-offending.

The key section of the new Rochester Ordinance reads as follows:

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On April 21, 2014, the parties in James Ellis III, et al. v. Swift Transportation Co. of Arizona, LLC filed a joint motion for a class action settlement. In the complaint, filed in the Eastern District of Virginia on July 23, 2013, the Plaintiff had claimed that the Defendant had collected consumer information, including criminal background reports, about job applicants who submitted non-in-person applications-via facsimile, telephone, mail, electronic mail, or through an internet website. Plaintiff alleged that Swift routinely obtained such consumer data (i) without obtaining proper authorization from applicants, (ii) without providing notice that applicants were entitled to free copies of their consumer reports within 60 days, (iii) without providing notice that they were entitled to dispute the information in these reports, and (iv) without providing notice of adverse actions that were taken by Swift on the bass of these reports, all violations of the FCRA.

Each of the 10,000+ members of the class-each person who applied for a Department of Transportation regulated position at Swift during the five years before the filing of the Complaint that started this lawsuit-will be eligible to receive between $100.00 and $1000.00. In addition to attorneys’ fees and costs, $5,000.00 service awards to named plaintiffs, and administrative costs, the company will pay out approximately $4,400,000.00. In the Settlement Agreement, the company denies the charges in the Complaint and explicitly states that their willingness to settle is based on its calculation that the company will benefit more from paying the agreed amount than incurring the cost and risk of further litigation.

This settlement and several others like it happen against the backdrop of a larger political discussion of whether companies should be permitted to gather and use applicant’s credit information in the first place. In December 2013, Senator Elizabeth Warren introduced the “Equal Employment for All Act,” which would amend the FCRA to say that “a person, including a prospective employer or current employer, may not use a consumer report or investigative consumer report, or cause a consumer report to be procured, with respect to any consumer where any information contained in the report bears on the consumer’s creditworthiness, credit standing, or credit capacity–“(A) for employment purposes; or (B) for making an adverse action…” Senator Warren and the Bill’s co-sponsors have argued that there is rarely any correlation between a candidate’s creditworthiness and her fitness for a job, and that individuals’ credit problems are almost always caused by a combination of economic downturn and personal misfortune. “Families have not fully recovered from the 2008 financial crisis,” Warren said, “too many Americans are still searching for jobs. This is about basic fairness-let people compete on the merits, not on whether they already have enough money to pay all their bills.”

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