A former New York City hotel employee recently filed a proposed class action lawsuit against the real estate investment trust that owns the hotel and 15 other hotels, alleging discrimination against certain employees by the through the use of criminal history. The lawsuit alleges that the trust violated New York’s Fair Chance Act by failing to provide the plaintiff with a copy of Section 23-A, which provides a detailed explanation of the circumstances of a job applicant’s rejection on the based on his criminal history.
In the complaint filed with the court, the complainant indicates that he submitted an online application to work in one of the employer’s hotels. He was then called for an interview and was hired. He started working for the company, but about a week later he arrived at work to find that his position had been taken by someone else, and he was later told by the company’s general manager that he had been fired due to the discovery of a criminal history in a background check.
According to the complaint, this was in violation of New York City human rights law, as amended by the city’s Fair Chance Act and New York Fair Credit Reporting Act. The first law makes it illegal to examine an applicant’s criminal history without first offering them a conditional job offer and then following certain procedures when conducting an investigation. This includes demonstrating a direct link between the specific criminal history and the position in question and demonstrating that the link would pose an unreasonable risk to property, the well-being of particular individuals or the general public.
To do this, an employer must justify the decision to refuse employment based on eight factors under Section 23-A, which include consideration of the duties of the position, the individual’s ability to perform them exercise, the time that has elapsed since a criminal offense, and any evidence of rehabilitation. The employee should then receive a copy of the analysis and be given the opportunity to respond and submit any proof of rehabilitation and good conduct.
According to the lawsuit, the plaintiff did not receive a copy of the analysis or had no time to respond to the decision before being fired. Had he had the chance, the lawsuit alleges he could have presented evidence of his good behavior and rehabilitation, which could have offset the “negative inferences the defendants have drawn from his conviction history.” .
As this case clearly illustrates, New York City laws regarding conducting a background check can be complex. In order to stay compliant and avoid potential liability, it’s important to partner with a background check provider you can trust to stay compliant with applicable laws and regulations.
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