A real estate investment trust who owns 16 New York City hotels faces a class action that alleges the company has discriminated against certain employees through the use of criminal history screenings.
A real estate investment trust who owns 16 New York City hotels faces a proposed class action that alleges the company and its management arm have discriminated against certain employees through the use of criminal history screenings.
The 22-page lawsuit alleges Hersha Hospitality Trust and Hersha Hospitality Management, who runs 15 New York City hotels, some of which are not owned by the trust, wrongfully fired a Moxy NYC Downtown bellperson on the basis of his conviction history. The lawsuit alleges the Hersha defendants ran afoul of the Fair Chance Act amendment to the New York City Human Rights Law by failing to provide the plaintiff at the time of his firing with a copy of Article 23-A, a detailed explanation of the circumstances under which an employer may reject an applicant on the basis of a conviction history.
“While Defendant Hodge informed Plaintiff that he was being terminated because of his conviction history, none of the Defendants provided Plaintiff with a more detailed explanation of why exactly his conviction disqualified him from serving as the bellperson at the Moxy,” the complaint summarizes, claiming that the plaintiff, if given an opportunity to discuss his background, could have provided evidence of his rehabilitation and good conduct since his conviction.
Per the complaint, Hersha Hospitality Trust owns hotels in the city such as the Hyatt Union Square, Hampton Inn Manhattan/Times Square South, Hampton Inn Madison Square Garden, Holiday Inn Express Wall Street, and Hilton Garden Inn JFK, among others. Hersha Hospitality Management operates properties that include those owned by the trust and others, including the Moxy NYC Downtown, Aliz Hotel Times Square and Nu Hotel in Brooklyn, the case states.
The Fair Chance Act amendment in October 2015 made it an unlawful, discriminatory practice for most employers, labor organizations and employment agencies in New York City to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment, the lawsuit states. Further, the Fair Chance Act specifies certain procedures with regard to an employer’s inquiring into an applicant’s criminal background, and prohibits an employer from denying employment when it is unable to show a direct relationship between the conviction and the job or the existence of “an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” the case says.
The suit also states that an employer may not deny employment to an applicant without first justifying the decision on the basis of eight factors—which cover, for example, the specific duties of a job, the bearing of the conviction on the person’s ability to perform the job, time since conviction, the age of the person at the time of the offense, the seriousness of the offense and other considerations—and providing the individual with an opportunity to respond. Prospective employers must also allow a job applicant to submit evidence of rehabilitation and good conduct in the process of making a hiring decision, the case says.
“Employers may not deny employment to applicants without first justifying such a decision on the basis of these factors and then giving applicants an opportunity to respond to this analysis,” the complaint states.
According to the lawsuit, the Hersha defendants violated the Fair Chance Act by initiating a background check on the plaintiff before making him a conditional offer of employment. More specifically, the case alleges that the adverse action notice that the plaintiff received at the time of his termination stated that the man had provided Hersha with authorization for a background check when he filled out his application—permission that the plaintiff does not recall giving, the suit says.
The lawsuit charges that even if the defendants were correct in their claim that the plaintiff gave them permission to do a background check, that means they unlawfully raised the issue of his conviction history before extending him a conditional offer of employment.
The case alleges Hersha violated the Fair Chance Act again with the adverse action notice it provided to the plaintiff, as New York City employers may not deny employment on the basis of criminal history without providing an individual with their Article 23-A analysis and an invitation to respond to it within a reasonable time period.
“Had Defendants followed the procedures set forth by the Fair Chance Act, [the plaintiff] would have had an opportunity to present evidence of his good conduct and rehabilitation to offset the negative inferences Defendants drew from his conviction history,” the lawsuit contends.
According to the complaint, the plaintiff, around December 2021, filled out an online application to work as a bellperson at the Moxy NYC Downtown hotel and received a call about a week later inviting him to come for an interview. The man was hired and began working at the hotel at the beginning of January 2022, the suit says.
The case claims that about a week into the plaintiff’s employment, a co-worker expressed surprise that the man had come into work given the person “heard” that the plaintiff had “quit.”
The following day, the plaintiff came to work and found another bellperson handling his duties, and was told by a defendant that “we found out that you have a criminal background, so we’re going to let you go,” the lawsuit claims. The plaintiff allegedly did not receive a detailed explanation of the circumstances under which an employer in New York City may reject an applicant on the basis of their conviction history.
The lawsuit looks to represent:
“All individuals with criminal records who, during the applicable limitations period, applied for employment at any New York City hotel that is owned by Hersha Hospitality Trust and/or operated by Hersha Hospitality Management, L.P. and were either denied employment or terminated after Defendants conducted a background check or otherwise inquired into their criminal history, without first receiving (a) a conditional offer of employment and/or (b) Defendants’ Article 23-A analysis and a reasonable opportunity to respond to it.”
The case also looks to cover:
“All individuals with criminal records who, during the applicable limitations period, applied for employment at any New York City hotel that is owned by Hersha Hospitality Trust and/or operated by Hersha Hospitality Management, L.P. and (a) were denied employment or terminated by Defendants, (b) had consumer reports requested about them by Defendants, and (3) were not provided with a copy of Article 23-A of the Correction Law.”
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