Job Applicant Claims Inaccurate Criminal History Resulted in Lost Job Opportunity, Violated Federal Law

Criminal history can be a major impediment for job applicants. Laws in New York City and elsewhere offer some protection for job seekers whose criminal history is not directly relevant to a job or its specific duties. Incorrect information is also a serious concern, especially considering the sheer volume of information available to consumer reporting agencies (CRAs) and other services. A putative class action is alleging violations of the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., because of a hiring decision allegedly based on inaccurate criminal history in a background check. Feldstein v. LLC, et al., No. 3:15-cv-07322, complaint (D.N.J., Oct. 5, 2015).The New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., protects employees and job applicants from various forms of employment discrimination. This includes a ban on discrimination based on an arrest or criminal record, unless a “direct relationship” exists between an applicant’s criminal history and the specific job, or the applicant would pose an “unreasonable risk” to specific individuals, specific property, or the public. N.Y.C. Admin. Code §§ 8-107(10), (11); N.Y. Corr. L. § 752. Employers in New York City are also barred from advertising jobs as being open only to people without criminal history, or inquiring about criminal history during the initial phases of the hiring process. N.Y.C. Admin. Code §§ 8-107(11-a).

Job applicants in New York City also enjoy protection under the NYCHRL from certain adverse employment decisions based on credit history. The NYCRHL defines “consumer credit history” to include an applicant’s “consumer report,” “credit score,” and other financial information. N.Y.C. Admin. Code. § 8-102(29). It prohibits discrimination based on credit history information, except when such information affects federal securities law. Id. at § 8-107(24). The NYCHRL does not, however, address situations in which a report of criminal history is incorrect.

The FCRA defines a “consumer report” as a collection of information collected and compiled by a CRA, consisting of financial information and information about “character, general reputation, personal characteristics, or mode of living.” 15 U.S.C. § 1681a(d). This could include criminal history. Employers are required by the FCRA to disclose their intent to obtain a consumer report as part of the job application process, and to get the applicant’s consent to do so. If the employer makes an adverse hiring decision based on information contained in an applicant’s consumer report, it must notify the applicant in advance and provide them with a copy of the report and information about their right to dispute information in the report. 15 U.S.C. §§ 1681b(b)(3), 1681g(c).

The plaintiff in Feldstein applied for a job with the defendant and obtained a conditional offer of employment. The defendant obtained a consumer report from a third-party vendor, which indicated a criminal history that the plaintiff states is incorrect. The plaintiff claims that the defendant never directly informed him of its decision not to hire him, and that he learned of the decision by checking the status of his application on the defendant’s website. He is alleging that, under the FCRA, the defendant should have given him advance notice of its adverse hiring decision, along with a copy of the report and information on how to dispute errors in the report.

Phillips & Associates’ employment discrimination lawyers represent employees, former employees, and job applicants who have faced unlawful employment practices in the greater New York City area. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can assist you.

More Blog Posts:

Inquiring About Criminal History in the Initial Stages of the Hiring Process Is Now Unlawful for Most New York City Employers, New York Employment Attorney Blog, October 28, 2015

Talent Agent Responds to Sexual Harassment Allegation with Counterclaims of Defamation, Blackmail, New York Employment Attorney Blog, October 14, 2015

Appellate Court Allows Plaintiffs to Place Inappropriate Pictures Received From Defendant Into Evidence in New York Sexual Harassment Lawsuit, New York Employment Attorney Blog, January 22, 2014


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