Barclays Center Flouts ‘Criminal History’ Hiring Law, Suit Says

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Patrick Dorrian

The Barclays Center, home of the NBA’s Brooklyn Nets, unlawfully denies employment to job seekers with criminal records without giving them required notice of their rights or a chance to explain their convictions, a proposed class of workers alleges ( Kelly v. Brooklyn Events Ctr., LLC , E.D.N.Y., No. 1:17-cv-04600, class complaint filed 8/4/17 ).

The actions of Brooklyn Events Center LLC, which owns and operates the arena, and two companies that provide food services at the venue also violate laws prohibiting employment discrimination on the basis of race and national origin by improperly relying on applicants’ criminal past to deny them employment. This “imports the racial and ethnic disparities in the criminal justice system into the employment application process,” the class lawsuit, which was filed Aug. 4 in federal court, says.

The case is one of the first class actions under New York City’s new Fair Chance Act, class counsel Christopher M. McNerney told Bloomberg BNA Aug. 7. Like most other “ban the box” laws, the Fair Chance Act generally prohibits employers from asking about a job applicant’s criminal record until after a job offer has been made.

The FCA also requires New York City employers to provide an applicant with notice of any criminal-record information uncovered during a background screening that the employer believes disqualifies the applicant for employment and why, McNerney said. The law then requires that the applicant be given a chance to explain the circumstances of the conviction and to challenge the denial of employment.

The lawsuit, “is an important step in ensuring that the protections the New York city council just passed are enforced,” McNerney said. The FCA took effect Oct. 27, 2015.

McNerney is with the New York office of Outten & Golden LLP, an employee-side firm that advocates for workplace fairness. The firm brought the lawsuit together with Youth Represent, a citywide organization that provides free legal services to young people affected by the criminal justice system, on behalf of lead plaintiff Felipe Kelly and others who were similarly turned away for employment at the Barclays Center. The other companies sued are Levy Premium Foodservice LP and Professional Sports Catering LLC.

“Levy and all of our partners, including Barclays Center, are committed to fairness in all of our employment practices, and we abide by state, federal and local laws throughout the process of hiring of our team members,” Brooklyn Events Center, Professional Sports Catering, and Levy said in an Aug. 7 email from Levy Director of Communications Matt Dicker. “The Kelly matter is pending litigation, and we do not provide comment specific to such matters,” they said.

Applicant Screening in Cross Hairs

Kelly, who is black and Latino, applied for a food services position at the arena, McNerney said. He received a conditional job offer, but it was rescinded based on the results of his criminal history check. Barclays never told Kelly why he was rejected, nor did it allow him a chance to explain or put his conviction in context, the lawsuit alleges.

It’s too soon to know just how many workers have been affected by applicant criminal history screening conducted for the arena, McNerney said. The Barclays Center is a large employer, “so we expect the class size to be significant.”

The Outten firm has previously taken legal action to enforce “ban-the-box” and related laws aimed at removing barriers to employment for individuals with a criminal past. Major employers in New York and elsewhere that have either been sued or had an Equal Employment Opportunity Commission charge filed against them on this basis by Outten include Macy’s, Bellevue Hospital, The Hertz Corp., The GEO Group, Philips Electronics, the Southeastern Pennsylvania Transportation Authority, and Barclays Center’s crosstown rival Madison Square Garden. The biggest employer of them all—the federal government— agreed to pay $15 million to settle a race-based criminal background bias case against the Census Bureau.

In addition, the EEOC has previously warned employers of the risks inherent in criminal background checks. Many state and local governments also have enacted ban-the-box laws that typically delay when in the hiring process such screening may be done for most jobs.

Four Classes Proposed

The complaint asserts claims under the New York City Human Rights Law, the 2015 Fair Chance Act amendment to that law, the New York State Correction Law, and federal and state fair credit reporting laws. The federal Fair Credit and Reporting Act and its New York counterpart contain similar requirements to the FCA regarding disclosure of credit background-screening results—what the FCRA calls a “consumer report"—to an applicant and notice of rights and remedies when a job is denied on that basis.

Outten and Youth Represent seek certification of four separate classes of applicants: an NYCHRL Criminal History Discrimination Class; an NYCHRL Fair Chance Act Class; an FCRA Consumer Report Class; and an NY FCRA Class. The class period for each class is linked to the relevant law’s statute of limitations, except for the FCA class, which covers the period from the Oct. 27, 2015, effective date of the statute to the present.

“Defendants repeatedly and routinely took adverse action based in whole or in part on information contained in a consumer report before providing” job seekers with a copy of the report or notice of their rights, the complaint asserts in support of the fair crediting reporting claims.

Ossai Miazad and Lewis M. Steel of Outten & Golden and Michael C. Pope and Eric Eingold of Youth Represent also represent the proposed classes. No attorney had filed an appearance for Brooklyn Events Center, Levy Premium, or Professional Sports Catering.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.