You get an applicant for a customer-facing job. Everything about this candidate seems just right for the position. No criminal history according to the application. Great personality, relevant experience. So you make a conditional offer, you run a background check, and that one little offense of murder shows up on the report. You can’t have someone with a murder conviction having close contact with your customers. So you rescind the offer…and the applicant sues.
You are flabbergasted. How can anyone think you are obligated to hire a candidate with a murder conviction? What’s going on? What could you have done wrong? How do you make sense of the situation? Let’s try. Read on…
This week’s real, live case example involves Amazon and Whole Foods. A US District Court judge for the Southern District of New York just allowed a convicted murderer to proceed with his lawsuit after he was rejected for a delivery job at Cornucopia Logistics, which serves Amazon and Whole Foods.
Here, in a nutshell, is what (else) went down:
Henry Franklin applied for a grocery delivery job at Cornucopia Logistics in April 2019. When asked on his application whether he had ever been convicted of a crime, he checked the “No” box. There was only one problem: In fact, Franklin did have a criminal history. He was convicted of second-degree murder in June 1995, served 23 years in prison, and was paroled in June 2018. Amazon determined after a background check that he had lied on his application about his criminal history .and rejected him.
Franklin filed a class-action lawsuit on behalf of Amazon and Whole Foods job applicants in New York State and New York City with criminal records.
Amazon and Whole Foods moved to dismiss the case. They argued that: a) they rejected Franklin because he lied on his application and that it had a right to reject him on that basis; b) he couldn’t sue Amazon and Whole Foods because they were not his prospective employer, and c) the refusal to hire him was based on valid concerns for customer safety.
The US District Court Judge denied the motion, ruling that Franklin’s allegations were sufficient to proceed with his claim. How could that be?
New York State law prohibits employers from rejecting a candidate based on criminal history unless the crime(s) directly relate to the job in question (e.g. an applicant for an accounting position has a recent embezzlement conviction) or the hirings would pose an unreasonable risk to the public. The judge found that Amazon and Whole Foods didn’t show that either of those exceptions applied. Wait. What about the risk to the public? The judge found that Franklin “has adequately alleged that he is rehabilitated and no longer poses a threat to the public.”, although she did say she was “sympathetic to defendants’ likely position that they do not want a convicted murderer delivering groceries to their customers’ homes.”
New York City’s Fair Chance Act prohibits employers from asking about criminal history before extending a conditional offer of employment. I’ll come back to that in a moment.
OK, what about the fact that he lied on his application? The judge doesn’t seem to have addressed that issue. To the extent that he or other similarly-situated applicants sought jobs in New York City, asking that question on the application was illegal. (I’ll come back to that.) That said, the sole issue before the judge was whether Franklin alleged sufficient facts to state a claim, which the judge found he did. (Barely, at best, in my opinion). Just because a judge finds a claim sufficient to withstand a pre-trial motion to dismiss, doesn’t mean it is ultimately a winning claim.
OK, all well and good, but what can the rest of us take from this case? Does it mean you have to hire a convicted murderer? Is it OK for an applicant to lie on his/her job application? No and no, in my opinion.
For one thing, I would not be surprised if Amazon and Whole Foods appeal the ruling. If the named employee was not applying for a New York City position, then lying on the application would generally be a valid reason for rejecting him for the delivery job. If the case does go to trial, the concern about a convicted murderer having significant customer contact in their homes would certainly get a lot of attention. In many cases, I believe that would be enough for a court to uphold this employer’s decision. One reason the judge may have been hesitant to dismiss this case was that Franklin apparently presented evidence that he had been rehabilitated. That would be considered a triable issue of fact. In other words, Amazon/Whole Foods/Cornucopia Logististics’ safety concerns would have to be weighed against the evidence of rehabilitation.
New York State and New York City are not the only states and/or localities that restrict how and when you can obtain and use an applicant’s criminal history when making hiring decisions. The laws are referred to as “Ban the Box” laws, referring to the “yes” or “no” box the applicant checks on the application when indicating if they have a criminal history. That said, here are some recommended best practices:
- Inquire and check into criminal history only after extending a conditional job offer.
- Let applicants and employees know in writing (in an application and Employee Handbook at the very least) that if they are found to have lied on a resume, job application or at any other point during the application/hiring process they will be rejected and/or terminated;
- Follow all federal and state Fair Credit Reporting Act requirements when conducting a background check;
- If the background check does reveal one or more criminal offenses, evaluate whether the offense(s) is relevant to the job or other legitimate business concerns. Many states, such as New York, will require you to meet either of these criteria before you can withdraw a job offer. The EEOC takes the position that federal laws effectively have the same requirements.
- Review and update your policies.
- Check in with your friendly local employment counsel (c’mon, you knew that was coming, didn’t you?).
OK, let’s end here for now, and in the meantime, stay, warm, stay healthy, stay safe!
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