2022Criminal Records

Written By ESR News Blog Editor Thomas Ahearn

On January 26, 2022, a federal judge in a U.S. District Court in New York City said a convicted murderer who served 23 years in prison may pursue a proposed class action lawsuit against Amazon.com Inc. and its Whole Foods unit after he was turned down for a grocery delivery job, according to a news report from Reuters.

Reuters reported that U.S. District Judge Valerie Caproni said the plaintiff ex-offender had “adequately alleged that he is rehabilitated and no longer poses a threat to the public” but she was also “sympathetic to defendants’ likely position that they do not want a convicted murderer delivering groceries to their customers’ homes.”

Amazon ran a background check on the ex-offender – who was convicted of second-degree murder in 1995 and paroled in 2018 – and found he had lied on his job application when asked if he had a criminal record, and Amazon and Whole Foods argued the lie was reason enough to turn him down for the job, Reuters reported.

However, the Fair Chance Act (FCA) prohibits employers in New York City from rejecting job applicants based on their criminal history unless there is a direct relationship between the crime and the job or employing them poses a risk to people. Judge Caproni said the defendants failed to show either exception applied, Reuters reported.

The class action lawsuit is Franklin v. Whole Foods Market Group Inc et al, U.S. District Court, Southern District of New York, No. 20-04935. The class action lawsuit was brought on behalf of Amazon and Whole Foods job applicants in New York state and New York City with criminal records. The Reuters article is available here.

The FCA was added to the New York City Human Rights Law (NYCHRL) in October 2015 because even though New York City required that employers must fairly assess job candidates under Article 23-A of the Correction Law, many employers were disregarding candidates who disclosed criminal histories early in the hiring process.

In January 2021, the New York City Council amended the FCA to extend employment protections for individuals with pending adjournments in contemplation of dismissal (ACDs) and convictions for violations prior to sealing by adding both to the category of dispositions that may not be considered for employment-related decisions.

The law also prohibits discrimination in licensing against applicants with convictions for violations, even prior to sealing, and would clarify protections for applicants and employees with pending criminal cases by requiring an employer to make an individualized assessment of the relationship between the charged conduct and the job.

The amended FCA requires that employers who revoke a conditional job offer demonstrate that they would not have made the offer regardless of the applicant’s criminal history, and provides numerous additional protections for ex-offenders. To help employers comply, the NYCHRL has issued compliance guidance on the FCA.

Employment Screening Resources® (ESR) – a service offering of ClearStar, a leading provider of Human Capital Integrity℠ technology-based services – offers a white paper about “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce” for job applicants with criminal records. To learn more, contact ESR today.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – 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.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – 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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