Madison Square Garden (MSG) has agreed to pay $1.3 million to settle a class action lawsuit that claimed MSG violated the Fair Credit Reporting Act 15 U.S.C. § 1681 et seq. and the New York State Fair Credit Reporting Act Gen. Bus. Law § 380 et seq.,
It is alleged in the lawsuit Madison Square Garden Award that MSG routine rejects job applicants based on information contained in background check reports that it obtains from a consumer reporting agency (CRA) without first providing those individuals with copies of their consumer reports and a statement of rights under the FCRA and Article 23-A of the New York Correction Law. (3)
MSG’s failure to provide these documents before taking adverse action violates section 1681b(b)(3)(A) of the FCRA. It also violates N.Y. Gen. Bus. Law § 380-g(d), which requires that employers provide individuals with a copy of Article 23-A of the Correction Law when a consumer report has been procured on them. (4)
Similar to the EEOC suggested guidelines the NYCHRL forbids companies from denying employment, or aiding and abetting the denial of employment, simply because a job applicant has a criminal record. Instead, companies must engage in an individualized evaluation of each of the factors outlined in Article 23-A of the Correction L. (15)
These required rules in New York and guidelines in the EEOC, state the employer develop a targeted criminal record screen that is narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question by taking into account, at least, the following factors:
(1) The nature and gravity of the offense or conduct;
(2) The time that has passed since the offense or conduct and/or completion of the sentence; and
(3) The nature of the specific job held or sought.
The employer should then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
Additionally, Article 23-A of the Correction Law prohibits an employer from denying
employment to any person by virtue of their criminal record unless the employer can meet its burden of demonstrating one of two exceptions:
(1) there is a direct relationship between one or more of the previous criminal
offenses and the specific license or employment sought or held by the individual; or
(2) the issuance or continuation of the license or the granting or continuation of
the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. N.Y. Correct. Law § 752 (59)
Your CRA should allow easy compliance with the requirement that individuals receive a copy of their consumer report PARTICULARLY if you are using information in the report to make an adverse decision.
Competent employment legal counsel should always be consulted to help you construct policies that will help comply with the EEOC’s guidance in the area of determining if particular criminal convictions are related to the job duties of the position.