Plaintiff Genevieve Suarez filed to propose class action lawsuits against the two companies Monday. In both cases, she characterized the defendant’s criminal conviction screening policies and practices as “flawed, overbroad and discriminatory.”
New York law mandates that employers evaluate qualified applicants and current employees with conviction histories on an individual basis according to eight specific factors. This includes the effect the offense might have on their ability to perform their job, the time elapsed since the offense, the seriousness of the offense and any information produced by applicants, or on their behalf, regarding their rehabilitation and good conduct. Suarez’s complaints claim that Amazon and Gap have instituted flawed processes that do not carefully weigh these factors as required, including by using categorical bans on wide swaths of convictions before any individualized analysis and by failing to solicit relevant information from applicants.
Suarez said she was convicted of misdemeanor welfare fraud in 2017 for a charge that was brought in June 2015 and that she paid the full restitution. Last fall, she applied to several open full-time positions at a New York Amazon distribution center, each of which she said she was qualified for. In her lawsuit, she alleges that Amazon rejected her “based on a background check, specifically because the background check revealed a prior criminal conviction.”
On or about Nov. 1, she was hired by Gap as a full-time sorter at a distribution center, where she said she received $19.50 an hour, worked 10-20 hours of overtime per week and was eligible for health benefits and a 401k plan. According to her lawsuit, she was verbally terminated on Black Friday because her “background check” made her “ineligible.” Suarez said she obtained a copy of her background check and confirmed that the only negative record it contained was the 2017 misdemeanor welfare fraud conviction.
Neither Amazon nor Gap inquired about the circumstances surrounding her conviction or her rehabilitation and good conduct since then, the lawsuits claimed. Suarez asserted that her crime did not bear any direct relationship to the positions she applied for at Amazon or the role she held at Gap. Had the companies performed a “thorough and individualized analysis” based on the eight factors New York requires them to evaluate, they “could not possibly have concluded, reasonably and in good faith, that Plaintiff’s conviction should have excluded her from the positions for which she applied,” the suits added.
The complaints propose class actions that would be comprised of all individuals who in the prior three years were denied or terminated from employment positions with the respective companies in New York State “based in whole or in part on their prior criminal convictions.” Suarez was the only specific plaintiff named in either filing. The complaints ask that Gap and Amazon change their policies and that Suarez and any other hypothetical class members be awarded front pay, backpay, compensatory damages, nominal and/or exemplary damages and punitive damages.
As the pandemic began to subside in mid-2021, businesses across the country found themselves scrambling to fill job openings. Companies offered higher pay and signing bonuses and dozens of states elected to end expanded unemployment benefits early. Still, unfilled job openings continued to loom large.
In October—around the time Suarez was applying for a job at one of its warehouses—Amazon announced it would be hiring 150,000 full- and part-time seasonal employees across its operations network heading into the holiday season. Weeks later, as the company discussed its latest quarterly earnings, chief financial officer Brian Olsavsky revealed that lost productivity and disruption in operations had contributed more than $1 billion in costs in the third quarter. Altogether, the cost of labor, labor-related productivity losses and inflation to steel and trucking expenses added approximately $2 billion in operating costs. At the time, he estimated this would double to $4 billion in the fourth quarter.
“In the third quarter, labor became our primary capacity constraint, not storage space for fulfillment capacity. As a result, inventory placement was frequently redirected to fulfillment centers that had the labor to receive the products,” Olsavsky said. “This resulted in less optimal placement, which leads to longer and more expensive transportation routes. In short, our operations are normally well-staffed and optimized to be in stock and to deliver to customers in one-to-two days. Labor shortages and supply chain disruptions upset this balance and resulted in additional costs to ensure that we continue to maintain our service levels to customers.”
In Oklahoma, Amazon is facing an entirely different sort of labor issue. On Wednesday, the Oklahoma County Sheriff’s Office announced the arrests of three individuals, including two Amazon contract drivers, who they alleged were part of a “massive Amazon theft ring.” The three allegedly stole thousands of Amazon packages—hundreds of which they reportedly dumped outside of Oklahoma City—and face 15 counts of felony possession of stolen property and embezzlement, with more charges expected to be filed. The police returned the packages to Amazon to be re-delivered.
“We are thankful for the quick investigative work of the Oklahoma County Sheriff’s Office and are committed to taking care of any customers who may have been impacted by this criminal activity,” Kelly Nantel, an Amazon spokesperson, said in a statement published on the sheriff’s office’s Facebook page. “Customers missing packages are encouraged to report any delays to Amazon customer service so we can work quickly to make it right.”