HIRING CAN BE MURDER: RECENT DISCRIMINATION CASE INVOLVING AMAZON, WHOLE FOODS OFFERS IMPORTANT WARNING TO EMPLOYERS REGARDING HIRING PRACTICES

HIRING CAN BE MURDER: RECENT DISCRIMINATION CASE INVOLVING AMAZON, WHOLE FOODS OFFERS IMPORTANT WARNING TO EMPLOYERS REGARDING HIRING PRACTICES

January 31, 2022

Franklin v. Whole Foods Market Group Inc. et al (U.S. District Court, Southern District of New York, No. 20-04935) involves a man who served 23 years in prison following a conviction for second degree murder. Upon his release, he applied for a grocery delivery job at Cornucopia Logistics, which serves Amazon and Whole Foods. Upon discovering that the job applicant, Henry Franklin, had misled the company by answering “no” when asked if he had a criminal record, the company denied him employment, citing the applicant’s untruthful answer as the reason for not hiring him.

After Amazon rejected his application for employment, Mr. Henry alleged discrimination and sued Amazon. Amazon filed a motion to dismiss the suit, but U.S. District Judge Valerie Caproni in Manhattan said that Mr. Franklin’s case could proceed.

New York law typically bars employers from rejecting job applicants based on their criminal histories unless:

1.   The employer can show the conviction relates directly to the job being applied for (say, a convicted drunk driver applying for a job driving a school bus); and/or

2.   The employer can show that hiring the individual would pose a risk to their customers

The Franklin v. Amazon/Whole Foods provides an opportunity to remind employers of the dangers inherent in using a candidate’s criminal history during the hiring the process.

  • A lie does not disqualify. Liability may attach to a decision against hiring a convict if it appears that the candidate has rehabilitated himself, and/or the conviction is not related to future job duties. In the Franklin case, the court acknowledged that Mr. Franklin was untruthful, but let the case proceed anyway. Lying on job applications is common. In fact,  a 2020 report featured on MSNBC found that 78 percent of job applicants lie on their application.
  • Individualize Each Assessment. NYS Correction Law Article 23-A requires that employers conduct an individualized assessment of all qualified candidates, regardless of criminal history.
  • Do Not Discriminate. Title VII, the Civil Rights Act of 1964, a federal law enforced by the Equal Employment Opportunity Commission, protects all job applicants and employees from discrimination on the basis of their race, color, religion, sex, gender, or national origin. There is ample New York State and federal case law to guide employers in this regard, particularly with respect to fair screening policies for all applicants.
  • Allow Candidates to Explain Themselves. The Fair Credit Reporting Act (FCRA) – enforced by the Federal Trade Commission – requires employers to provide an applicant the opportunity to review and challenge the results of the background check before denying their application.

Labor and employment law is complex and ever-changing, both at the state and federal level. It would be virtually impossible for a business owner to be able to stay up on all of it. That is why our labor and employment team works closely with our clients to make sure they are in compliance with all labor laws and that if a problem does arise, we are there to manage it for them, mitigate any damage, and allow them to stay focused on operating their business.

Give me, or any member of our labor and employment team a call if you have concerns you would like to discuss.

Kevin Burke’s practice includes wide ranging federal and state court experience in civil litigation within employment law, environmental defense, class actions, product liability defense, corporate dissolution and shareholder disputes, and “business divorce,” breach of contract, OSHA and insurance coverage disputes.

Kevin counsels employers on recent developments in employment law, and the implementation of policies and procedures which enable employers to be in compliance with federal and state laws.

He can be reached at 716-854-4300 ext. 292 or kburke@gross-shuman.com