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Fresh Direct Hit with Class Lawsuit Championed by Outten & Golden Over Criminal History Checks

Two NYC job applicants to Fresh Direct, one who had already performed the work of the job for approximately five months, filed a class action lawsuit against the grocery delivery service alleging that they and others who were otherwise qualified to work for FD were illegally rejected based on the companies criminal history screening process in violation of the New York City Human Rights Law  FreshDirect has “instituted a sham process for evaluating applicants’ criminal histories,” it says.  The complaint alleges violations of New York State and City civil rights laws requiring an individualized assessment of qualifications for employment before an applicant is denied a job because of his or her criminal record.  According to the complaint, FreshDirect instead uses “categorical bans on wide swaths of convictions before any individual Article 23-A analysis” while also “excessively weighing certain Article 23-A factors over other factors” and “refusing to solicit relevant information from applicants before performing its analysis as required under the law.”

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The public policy of New York City and State is to encourage the employment of persons with criminal convictions and “reverse the long history of employment discrimination against” them by “eliminating many of the obstacles to employment.”  The recently enacted New York City Fair Chance Act codifies even greater protections for such individuals, dictating how an employer must complete its Article 23-A analysis and the steps it must take before denying employment to an applicant because of criminal history.  Similar “ban-the-box” laws that bar employers from factoring criminal convictions into employment decisions have been enacted in 35 states and more than 150 cities and counties.

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Outten & Golden partner, Ossai Miazad, says: “This lawsuit is crucial to ensuring that the strong protections enacted by the people of New York State and City are put to work for the benefit of all New Yorkers with criminal records.”  Outten & Golden attorney, Christopher McNerney, adds: “During this unemployment crisis caused by the COVID-19 pandemic, it is even more vital to ensure that employers that continue to hire workers live up to their obligation to give a fair shake to applicants with criminal records.”

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

Relief: Injunction barring unlawful practices; class certification; compensatory and punitive damages.

Potential Class Size: All job applicants and employees denied employment by Fresh Direct throughout New York State.

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Attorneys: Ossai Miazad and Christopher M. McNerney with Outten & Golden LLP filed the complaint.

The case is Soler v. Fresh Direct, Inc., S.D.N.Y., No. 1:20-cv-03431, filed 5/1/2020.

Outten & Golden LLP focuses on advising and representing individuals in employment, partnership, and related workplace matters both domestically and internationally. The firm counsels individuals on employment and severance agreements; handles complex compensation and benefits issues (including bonuses, commissions, and stock/option agreements); and advises professionals (including doctors and lawyers) on contractual matters. It also represents employees with a wide variety of claims, including discrimination and harassment based on sex, sexual orientation, gender identity and expression, race, disability, national origin, religion, and age, and retaliation, whistleblower, and contract claims. The firm handles class actions involving a wide range of employment issues, including economic exploitation, gender- and race-based discrimination, wage-and-hour violations, and other systemic workers' rights issues.

Outten & Golden has nine practice groups: Executives & Professionals, Financial Services, Sexual Harassment & Sex Discrimination, Family Responsibilities & Disabilities Discrimination, Lesbian Gay Bisexual Transgender and Queer (LGBTQ) Workplace Rights, Discrimination & Retaliation, Whistleblower Retaliation, Class & Collective Actions, and WARN Act.

Outten & Golden has offices in New York, Chicago, San Francisco, and Washington, D.C.

For media inquiries, contact Christopher M. McNerney at (212) 245-1000.

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