Class Action Lawsuit First to Challenge Alleged Employer Violations of New York City Ban the Box Law

ban the box

Written By ESR News Blog Editor Thomas Ahearn

A class action lawsuit filed in a New York federal court on August 4, 2017, could be the first of its kind to challenge alleged violations by employers of a New York City “Ban the Box” law called the Fair Chance Act (FCA), according to a press release from employment law firm Outten & Golden LLP, which filed the suit along with the nonprofit organization Youth Represent.

The press release states that the lawsuit claims the defendants – Brooklyn Events Center, LLC (doing business as Barclays Center), Levy Restaurants, Inc., and Professional Sports Catering LLC – “used flawed and discriminatory criminal history screening policies and practices” to deny employment to otherwise qualified job applicants in violation of the Ban the Box law.

Lead plaintiff, Felipe Kelly, applied for a job at Barclays Center – home of the Brooklyn Nets of the National Basketball Association (NBA) and the New York Islanders of the National Hockey League (NHL) – in 2016. He claims the defendants did not hire him after a background check, never said why, and did not give him the “Fair Chance Notice” required by the Ban the Box law.

The lawsuit claims Kelly was unaware of what information was being reported on him, unable to review the information for accuracy and completeness, review the arguments of defendants as to why they believed his conviction barred him from employment, or explain why he thought he was still entitled to employment and include any evidence of rehabilitation and good conduct.

“Federal and New York state laws require that job applicants with criminal histories be provided with the same criminal history information relied on by the prospective employer so they might evaluate that information, ensure it is accurate, and even if it is accurate explain why they nonetheless are qualified for employment,” said Christopher M. McNerney of Outten & Golden.

Outten & Golden LLP and Youth Represent will seek to have the case certified as a class action that covers proposed classes of affected job applicants since October 27, 2015. The case is Felipe Kelly, et al., v. Brooklyn Event Center, et al., Class Action Complaint No. 1:17-cv-04600 in the U.S. District Court for the Eastern District of New York. The full press release is available here.

As reported earlier by ESR News, the New York City Commission on Human Rights amended rules to establish definitions and procedures applying to the FCA that took effect in October of 2015 to amend the provisions regarding unlawful discrimination on the basis of criminal history against job applicants and employees. The amended rules took effect on August 5, 2017.

Ban the Box refers to removing the box on job applications that applicants are asked to check if they have criminal records. According to the National Employment Law Project (NELP), 29 states and over 150 cities and counties have Ban the Box laws. A 2011 study by NELP estimated that nearly 65 million people in the United States – more than one in four adults – had a criminal record.

“The purpose of Ban the Box is to give ex-offenders a fair chance at obtaining employment,” says Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR). “By removing the criminal history question, supporters claim job applicants can be sure that they will not be automatically excluded from consideration for a job because of past mistakes.”

Rosen, author of ‘The Safe Hiring Manual,’ adds: “Ban the Box does not mean there can never be a background check but instead prevents an early knock-out punch before ex-offenders have the opportunity to be considered on individual merits. Employers can still conduct criminal background checks, but Ban the Box delays this screening until later in the hiring process.”

NOTE: Employment Screening Resources® (ESR) reminds readers that allegations alone made in class action lawsuits are not proof that a business violated any law, rule, or regulation.

More Ban the Box Information From ESR

Employment Screening Resources® (ESR) – a leading global background check provider – supports sensible Ban the Box legislation. ESR offers employers a Ban the Box Information Page that contains news and legal updates about statescities and counties, and resources. The ESR Ban the Box Information page is available at www.esrcheck.com/Ban-the-Box/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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