Second Chance

Written By ESR News Blog Editor Thomas Ahearn

On May 1, 2020, a class action complaint was filed in a New York district court that accused online grocery store FreshDirect “of categorically excluding from employment workers with certain types of criminal records, in violation of New York laws barring race and other discrimination,” Bloomberg Law reported.

The complaint filed in the United States District Court for the Southern District of New York claimed Fresh Direct violating the New York City Human Rights Law (NYCHRL), New York State Human Rights Law (NYHRL), N.Y. Executive Law § 290, N.Y.C. Administrative Code § 8-101, and Article 23-A of New York Correction Law.

The NYCHRL and NYHRL forbid employers from denying employment simply because a job applicant has a criminal record. Article 23-A specifically prohibits an employer from denying employment to any person by virtue of their criminal record unless the employer can meet its burden of demonstrating two exceptions:

  • There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
  • The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In Soler and Stewart v. Fresh Direct, Plaintiff Vidal Soler started temporary work at FreshDirect in April 2019. In August 2019, he was offered a permanent job pending a successful background check. In September 2019, FreshDirect told him it could take adverse action based on his criminal history and later terminated his job.

The lawsuit claimed FreshDirect did not ask Soler for evidence of his rehabilitation before evaluating his application pursuant to the Article 23-A factors. Had they asked, FreshDirect would have uncovered significant evidence of his rehabilitation in a nonprofit program called Ready, Willing, and Able.

Plaintiff Corey Stewart applied for a position with FreshDirect in February 2017 and was given a conditional offer of employment pending a successful background check. In March 2017, he received a letter informing him FreshDirect may deny him employment based on the background report and he was later denied a job.

The lawsuit claimed FreshDirect did not ask Stewart for evidence of his rehabilitation before evaluating his application with Article 23-A factors. Had they asked, FreshDirect would have uncovered significant evidence of his rehabilitation, including his participation in job readiness training programs and transitional programs.

“Ban the Box” laws and second chance programs that help give ex-offenders in the United States with a prior criminal record a chance to find work after leaving prison are spreading in 2020, according to the “ESR Top Ten Background Check Trends” for 2020 compiled by Employment Screening Resources® (ESR).

Employment Screening Resources® (ESR) offers a complimentary white paper titled “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce” and a Ban the Box Resource Page that contains an interactive map with the latest Ban the Box laws that delay questions about criminal records until later in the hiring process.

Employment Screening Resources® (ESR) – a global background check firm – reminds readers that allegations made in class action lawsuits are not proof a business or individual violated any law, rule, or regulation since they are in the pleading stage with no factual adjudications yet. Learn more about ESR at www.esrcheck.com.

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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