New York City law provides some of the most comprehensive protections against employment discrimination based on criminal history. No comparable protections exist under federal law, although the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., provides similar protections with regard to consumer credit information. Credit reports obtained by employers during the hiring process may include information regarding criminal history. A putative class action in federal court in New Jersey alleges that a major ridesharing company violated the FCRA by failing to disclose information found in drivers’ credit reports prior to taking adverse actions against the plaintiffs. Cuccinello, et al. v. Uber, Inc., et al., No. 2:15-cv-06604, am. Complaint (D.N.J., Dec. 7, 2015). The lawsuit also names the credit reporting agency (CRA) that issued the credit reports as a defendant.
The New York City Human Rights Law (NYCHRL) does not allow employers to inquire about criminal history until they have extended a conditional offer of employment to a specific applicant. If an employer makes an adverse decision after this point, it must notify the applicant of the reasons for this determination and give the applicant an opportunity to respond. This is similar to provisions of the FCRA relating to the use of credit reports for employment purposes.
The FCRA requires an employer to get a applicant’s written authorization to obtain a credit report, and to provide the applicant with “a clear and conspicuous disclosure,” in writing, stating that the information contained in the credit report may affect the employer’s hiring decisions. 15 U.S.C. § 1681b(b)(2)(A). Before a CRA may issue a report to an employer, the employer must certify that it has followed these requirements. Id. at § 1681b(b)(1)(A). If the employer bases an adverse action or decision on information contained in the applicant’s credit report, it must provide the applicant with a copy of the report and a notice of their rights under the FCRA. 15 U.S.C. §§ 1681b(b)(3)(A), 1681g(c).
One of the defendants in Cuccinello is a transportation network company (TNC). TNCs have been the subject of a great deal of legal controversy and scrutiny in recent years. They provide transportation services, in a sense, through mobile applications that match passengers with drivers using their own personal vehicles. Multiple lawsuits around the country have challenged TNCs’ contention that drivers are independent contractors rather than employees. City governments continue to fight with TNCs over whether they should be regulated as taxi companies or as something else. The Cuccinello lawsuit involves the use of background checks for drivers, another contentious issue in numerous cities.
The plaintiffs allege that the TNC defendant declined to hire them as drivers in 2014 because of reports provided by the CRA defendant. They claim that the background check authorization that the TNC required them to sign did not include disclosures in the form required by § 1681b(b), and that the CRA provided credit reports despite these defects. They further allege that the TNC failed to provide them with the required documentation after making adverse determinations against them. They are seeking class certification and statutory damages.
The criminal conviction discrimination attorneys at Phillips & Associates represent job applicants, employees, and former employees in New York City, helping them assert claims for a wide range of matters under federal, state, and city employment statutes. Contact us through our website or at (212) 248-7431 today to schedule a free and confidential consultation with an experienced and knowledgeable employee rights advocate.
More Blog Posts:
New York Laws Imposing Employment-Related Consequences for Criminal Convictions, New York Employment Attorney Blog, July 22, 2016
Research Suggests that Criminal History Discrimination Causes Employers to Miss Out on Good Employees, New York Employment Attorney Blog, June 29, 2016
Federal Agency Expands Protections Against Criminal History Discrimination, New York Employment Attorney Blog, May 6, 2016