Recently a federal judge said that Amazon and Whole Foods can be sued over the refusal to hire a convicted murderer. The individual claimed to be rehabilitated after nearly 23 years in prison.
Does this mean YOU HAVE to hire a convicted murderer? ABSOLUTELY NOT. The defendants made several key mistakes in not complying with applicable local jurisdictional law regarding the use of criminal conviction records. See wording in bold below for reasons why the case was allowed to proceed.
Employers in general need to be aware of the EEOC Guidance on this issue.
Applicability to local jurisdictional law is taken from the court filing Franklin vs Amazon and Whole Foods and are summarized below.
- Article 23-A of the Corrections Law, which NYHRL incorporates, prohibits employers from denying employment to an applicant when this denial “is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless” the employer can show “a direct relationship” between the conviction(s) and the job or “an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” N.Y. Corr. Law § 752.
- To determine whether such a direct relationship and unreasonable risk exist, Article 23-A requires employers to consider the following eight factors before taking any adverse action on the basis of a job applicant’s criminal record:
(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
(e) The age of the person at the time of occurrence of the criminal offense or offenses.
(f) The seriousness of the offense or offenses.
(f) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
(g) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
From the court filing “Without ruling on the merits, Caproni, the judge, said the defendants failed to show that either exception applied, adding that Franklin “has adequately alleged that he is rehabilitated and no longer poses a threat to the public.”
It would appear that the reason the judge allowed the case to proceed was that the defendants failed to follow applicable local law regarding the use of criminal conviction records as follows:
Paragraph 13. Article 23-A furthermore requires employers to explain their reasoning to applicants who are denied employment. Those “previously convicted of one or more criminal offenses” must be permitted to request a written explanation for the employer’s denial of employment, which the employer is required to provide within 30 days of the request. N.Y. Corr. Law § 754.
Paragraph 15. Defendant violated the New York Human Rights Law when it denied employment to Plaintiff Franklin without undertaking an Article 23 analysis and without affording Plaintiff Franklin an opportunity to request and then respond to that analysis. Defendants’ May 6, 2019 Adverse Action Letter denying Plaintiff Franklin employment with Defendants informed him of his right to dispute the accuracy of the Accurate Background report. But it contained no mention of his right to see and then respond to Defendants’ Article 23-A analysis.
Paragraph 21. Defendants violated the Fair Chance Act by inquiring into, and then taking adverse action on the basis of, Plaintiff Franklin’s criminal history before making a conditional offer of employment. Not only was this criminal history inquiry legally premature, Defendants then failed to undertake an Article 23-A analysis, provide the results to Plaintiff Franklin, and then afford Plaintiff Franklin an opportunity to respond to them.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
