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Fresh Direct Suit Alleges Race Bias in Worker Screening (1)

May 4, 2020, 2:26 PMUpdated: May 4, 2020, 8:22 PM

Fresh Direct is accused in a new class lawsuit of categorically excluding from employment workers with certain types of criminal records, in violation of New York laws barring race and other discrimination.

New York state and city human rights laws both require employers to consider eight factors laid out in the state’s corrections law before refusing to hire a job applicant or firing a worker with a past criminal conviction, Vidal Soler and Corey Stewart say in the suit filed Friday in federal court in Manhattan.

Fresh Direct LLC and Fresh Direct Holdings Inc. fail to consider all of those factors and deny employment to workers with convictions for certain types of crimes, the lawsuit says. Specifically, the companies exclude workers who have been convicted of violent crimes within the last 20 years for any position that involves direct customer contact or working closely with others, and those convicted of certain crimes against minors, regardless of when convicted, for any position with direct customer contact. It also excludes those convicted of certain crimes involving dishonesty, regardless of when convicted, for any position with the companies; and certain crimes involving motor vehicles, regardless of when convicted, for all jobs requiring the use of a motor vehicle.

The company’s hiring policies focus on just half of the factors set forth in Article 23-A of the New York State Correction Law, the complaint filed in the U.S. District Court for the Southern District of New York says.

Article 23-A and New York state and city anti-bias laws also require employers to consider New York’s public policy encouraging the employment of individuals with past criminal convictions, the specific duties and responsibilities necessary to the job sought, the time that has passed since the worker’s criminal offense, and their age at the time. The worker must also be given a chance to provide information regarding their rehabilitation and post-conviction good conduct, the suit says.

By “disproportionately” emphasizing some of the Article 23-A factors and failing to give proper weight to the other factors, Fresh Direct follows a policy that amounts to an “overbroad and/or arbitrary pre-employment” ban that “results in discrimination on the basis of race, ethnicity, color, and national origin” by importing racial and ethnic disparities in the criminal justice system into the employment context, the suit charges.

Individualized Analysis Required

Allegations in the complaint show the importance for New York employers to draft hiring policies that comply with state and city law, said Seth Kaufman, an employment attorney with Fisher & Phillips LLP in New York.

Specifically, employers are required to conduct an individualized analysis related to each job candidate with a criminal history, not apply a broad corporate policy that automatically excludes any candidates who have been convicted of particular offenses, he said.

“That policy is the hook that plaintiffs are using to make this a potentially larger case,” Kaufman said. “Class actions obviously are cases that employers do whatever they can to avoid because they’re more costly.”

State law generally requires employers to show a direct connection between a job applicant’s prior offense and the type of job they’re seeking or an unreasonable risk to company property or the general public. Some situations are more obvious than others.

“If somebody was previously convicted for embezzlement and you’re hiring for a CFO, you could probably be safe in denying them that employment based on their previous conviction,” Kaufman said.

Soler and Stewart seek to represent themselves and all similarly situated Fresh Direct workers or applicants in New York state and New York city within a three-year period preceding the suit, the complaint says.

Causes of Action: New York State Human Rights Law; New York City Human Rights Law.

Relief: Declaration that criminal background screening policy and practices are illegal and an order requiring implementation of lawful policy and practices; certification of NYSHRL class and NYCHRL class; reinstatement of Soler, Stewart, and other class members into jobs they held or equivalent positions, or front pay in lieu of reinstatement; back pay; compensatory and punitive damages; attorneys’ fees and costs.

Potential Class Size: Unknown, with exact number “uniquely within” possession of Fresh Direct.

Response: Fresh Direct didn’t immediately respond Monday to Bloomberg Law’s request for comment.

Attorneys: Outten & Golden LLP represents Soler, Stewart, and the proposed class.

The case is Soler v. Fresh Direct, LLC, S.D.N.Y., No. 1:20-cv-03431, class complaint filed 5/1/20.

(Updated with additional reporting and attorney comments beginning in 7th paragraph.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com