Articles Posted in Background Check

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.

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.

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.

Lucie Rivière and Edgar M. Rivera, Esq. 

Four taxi drivers are suing Uber Technologies, Inc. (“Uber”), the popular transportation start-up, in a $5 million class-action lawsuit for allegedly violating St. Louis licensing regulations.

The St. Louis Metropolitan Taxicab Commission (“MTC”), which regulates taxicabs, their drivers, and taxicab companies operating in St. Louis, allowed Uber to conduct business in St. Louis as long as Uber drivers followed the same rules as all other taxi drivers, which include obtaining a specific chauffeur’s license and being fingerprinted, which is required by the MTC’s Vehicle For Hire Code (“Taxi Code”). On November 12, 2015, taxi drivers compliant with the Taxi Code filed a lawsuit against Uber after the company launched its service using drivers not compliant with the Taxi Code; i.e., drivers who had not obtained a chauffeur license or were not fingerprinted. Plaintiffs claim that they have seen a 30% to 40% drop in revenue due to Uber’s illegal operation. According to Gary Growe, Esq, who represents the taxi drivers, the purpose of the suit is “to recognize that Uber is operating illegally and as a result of that, the existing taxi drivers are being harmed.” The MTC also filed a suit against Uber seeking a restraining order barring Uber from operating in St. Louis, arguing that the drivers’ failure to be fingerprinted was a danger to the public.

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.

Edgar M. Rivera, Esq.

On June 10, 2015, in Coleman v. Kohl’s Department Stores Inc., Plaintiff Kaynie Coleman filed a class action in the Northern District of California against Kohl’s, alleging that Kohl’s violated the Fair Credit Reporting Act (“FCRA”) by unlawfully acquiring consumer reports and investigative consumer reports to conduct background checks on perspective, current and former employees, and used that information in connection with the hiring process.

In the employment context, the FCRA provides protection for prospective employees against the misuse and misreporting of credit information.  The FCRA requires employers to follow specific procedures when they use consumer-reporting agencies to obtain “consumer reports” or “investigative consumer reports” on job applicants for employment purposes.  The FCRA defines a “consumer report” as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living,” which may include driving records, employment verifications, education verifications, criminal records.  The most common employer violations of the FCRA are: (i) failing to provide a consent form before obtaining a report; (ii) failing to provide stand-alone disclosure and consent forms, i.e., a “separate, clear and conspicuous document”; (iii) failing to provide the applicant with a copy of the summary of rights under the FCRA; (iv) basing hiring decisions on non-conviction criminal data older than seven years; and (v) failing to follow proper pre-adverse and adverse action steps when denying employment based on information contained in a consumer report, for example, providing a copy of the report.

Edgar M. Rivera, Esq.

A job applicant is suing Sears for violating the Fair Credit Reporting Act (FCRA), alleging that Sears failed to provide him with a “stand alone” disclosure before obtaining his consumer report and rejected his application without giving him a copy of his consumer report.

The FCRA requires that a user of a consumer report for employment screening purposes provide applicants with copies of their consumer reports, a written summary of their rights, and a reasonable notice period before taking any “adverse employment action.” Sears allegedly rejected job applicants based on information in their consumer report without providing the report to the applicants. The FCRA also requires that an FCRA disclosure form be “clear and conspicuous,” meaning that the disclosure must not be combined with, or attached to, any other document.  Brian D. Hall, an attorney with Porter Wright and Certified Information Privacy Professional, wrote, “[Although the FCRA] does not prevent an employer from combining the disclosure and the authorizations requirements into one form, it does prohibit the disclosure and authorization from being combined with other things, like an employment application.”  Sears’ disclosure allegeldy contained extraneous information, including state law disclosures. The FCRA provides plaintiffs with statutory damages of no less than $100 and no more than $1000 per willful violation, in addition to punitive damages, costs and attorneys’ fees.

Yarelyn Mena

Today, job applications are often completed on the Internet and, sometimes, on social media sites, such as LinkedIn.  LinkedIn allows users to apply to multiple jobs with a LinkedIn account, making an applicant’s information readily available to employers. The public access to potential employee information may facilitate an applicant’s job search; however, such access can also be detrimental. For example, Tracee Sweet lost an employment opportunity based on information procured by a prospective employer through LinkedIn.

Ms. Sweet applied to work for a company in the hospitality industry, through LinkedIn. After a seemingly successful interview, the General Manager notified Ms. Sweet that the company would offer her a position. Shortly there after, the company rescinded its job offer. Confused as to why she was rejected after the company’s initial excitement with her, she reached out to the General Manager, who informed her that the company checked, and was not pleased with, her references. The company used LinkedIn’s “Reference Search” function, which allows users who pay a subscription fee to find people and companies, for which applicants previously may have worked.

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.

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: