Employment Law Daily Who can be liable under NY law barring criminal history bias? Q certified to NY high court
Thursday, September 1, 2016

Who can be liable under NY law barring criminal history bias? Q certified to NY high court

By Marjorie Johnson, J.D. Unable to determine whether a provision in the New York Human Rights Law barring denial of employment on the basis of a criminal conviction (absent specific circumstances) applied only to "employers," and if so, who could be considered an "employer" and/or an "aider and abettor," the Second Circuit certified the three questions to the New York State Court of Appeals. The underlying claim involved two convicted violent sex offenders who were fired from their jobs at a moving company after a background check revealed their criminal histories. Along with their direct employer, they sued Allied Van Lines (which had an agency relationship with the moving company) and its parent company (Griffin v. Sirva Inc., August 30, 2016, Pooler, R.). Fired due to convictions. The two employees were fired from their jobs at Astro Moving and Storage Company. One had served 10 years after being convicted for sexually assaulting a 7-year-old, while the other served nine years due to a rape and sexual abuse conviction. Both were barred from having unsupervised contact with children under 18. Astro had contractually agreed with Allied to require any employees working on Allied jobs to undergo a criminal background check. An employee found to have one of several serious criminal convictions on his record was effectively prohibited from working on Allied jobs. The employees sued Astro, Allied, and Sirva (a parent company for North American Van Lines, who was a parent to Allied). They claimed that Sirva played a role in the background screening and that Allied established a "certified labor program" that required employee screening for "significant felony criminal histories." Allied also maintained "adjudication guidelines" to determine the eligibility of contractors and employees for participation in its interstate moving services. A felony conviction for a sexual offense mandated "permanent disqualification." District court’s decision. Granting summary judgment in favor of Sirva and Allied, the district court determined that the NYSHRL’s criminal conviction provision, Sec. 296(15), applied only to "employers" and neither defendant had any direct employment relationship with the plaintiffs. It also held that they were not joint employers, and did not "aid and abet" any violation by Astro. Three questions were at issue that the New York high court had not yet addressed: (1) whether the NYSHRL’s criminal conviction provision applies only to "employers"; (2) what is the scope of "employer"; and (3) whether a non-employer can be liable under the NYSHRL’s "aider and abettor" provision. Since New York law was unsettled as to these issues, the Second Circuit concluded that the law was too undeveloped for it to confidently predict how the New York Court of Appeals would resolve them. Just "employers"? First, it was unclear whether Sec. 296(15)—which bars denial of employment based on criminal convictions—was strictly limited to "employers." While the district court inferred that the "denying" entity must be an employer, the Second Circuit wasn’t so sure. The New York Court of Appeals may interpret the statute in this manner, but this interpretation was not obviously dictated by the statute’s language or existing case law. For instance, while the word "employer" appeared nowhere in the first half of the provision—which addresses discrimination on the basis of a conviction—it was used twice in the second half addressing negligent hiring. The two companies insisted that the "repeated" use of the term necessarily meant that its discrimination provisions applied only to employers. However, the fact that the term was used twice in the second half made its absence in the first half addressing discrimination "even more glaring." The companies also suggested only an "employer" can "deny employment" (which is what the district court found). However, the employees pointed out that other NYSHRL provisions expressly applied only to an "employer or licensing agency." Since parties failed to cite convincing legal authority, and there was no clear authority from the New York Court of Appeals, the Second Circuit found it appropriate to certify the issue. Who is an "employer"? Even if Sec. 296(15) were limited to "employers," it was unclear who fell within the scope of the term. While New York courts used balancing tests to determine such under other provisions of the law, they had not done so as to Sec. 296(15). Thus, it was not clear that the factors relevant to individual liability should control or whether other factors might merit consideration where, as here, the question was whether liability may be imposed on another corporation that has only a contractual relationship with the employing company. The district court also made no distinction between the "joint employer" and "single employer" doctrines and whether one or the other (or both) applied to the NYSHRL—especially Section 296(15). Broader definition possible. It also seemed that the definition of "employer" could be broader. For example, it would be unlikely that a New York company would be bound by a contractual term to apply a policy that explicitly discriminated on the basis of race or sex. But here, the agency contract explicitly required Astro to discriminate on the basis of prior criminal convictions. Thus, Sec. 296(15) may be distinguishable from other provisions of the NYSHRL barring other types of bias, and may well require a broader definition of "employer" to effectuate its prohibition against discrimination. "Aiding and abetting"? Finally, it was also unsettled whether the NYSHRL’s "aiding and abetting" provision could apply and, if so, how. Notably, New York courts might construe this provision differently when the liability of a corporation that contracts with the employing corporate defendant is at issue.

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