A class action lawsuit against New York Life alleges misuse of past arrest records in making employment decisions.
In a summary of the claim in the court document Class Action Alleges Black Applicants Disproportionately Harmed by New York Life Insurance Co. Background Checks it states:
- This case challenges Defendant New York Life Insurance Company’s (“New York Life” or “Defendant”) policy and practice of denying employment to qualified job applicants, like Plaintiff, because of arrests that never resulted in a conviction.
- Under New York State and City law, it is per se illegal for an employer to inquire about arrests or use them as a basis to deny employment when the charge was resolved in an individual’s favor.
But, what was the source of the arrest records? In paragraph 25 Class Action Alleges Black Applicants Disproportionately Harmed by New York Life Insurance Co. Background Checks of the Statement of Facts, it states that:
- As part of its routine policy and practice, New York Life accesses the Federal Bureau of Investigation’s (“FBI”) fingerprint database, to collect additional applicant criminal history information—including collection and use of arrest information regardless of whether the arrest was resolved in the applicants’ favor.
We have written before about the nature of records in the FBI fingerprint database. Our blog on the subject highlights the problems using arrest records from the FBI fingerprint database:
Anybody can be arrested for almost anything. When that happens, the police are of course very proficient at taking fingerprints and sending to the FBI. The individual was arrested. BUT, there was no disposition of the case. The District Attorney didn’t file any action against the individual. Thus there is no criminal conviction in public records, which is where consumer reporting agencies conduct the investigation.
Why do we highlight the difference between an arrest record and a criminal conviction? A conviction is proof beyond a reasonable doubt that the individual committed the violation. But, as mentioned earlier, anyone can be arrested for almost anything without an ultimate disposition occurring i.e. a criminal conviction. An employer normally should not be able to use such information in a hiring decision unless they perform additional investigative procedures that comply with EEOC regulations. Using arrest records to make an adverse hiring decision can potentially put the employer in violation of current EEOC rules and regulations.
In our opinion, the problem was the source of arrest records used by New York Life. That source being the FBI fingerprint database.
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: email@example.com or the website at randisiandassociates.com