On May 4, 2017, in Griffin v. Sirva, Inc., 2017 NY Slip Op 03557 (2017), the New York Court of Appeals held that while only “employers” may be liable for criminal conviction discrimination under § 296(15) of the New York State Human Rights Law (“NYSHRL”), the definition of “employer” may extend beyond an employee’s direct employer to also include entities that exercise “order and control” over the employee’s work. The court further held that other entities who do not qualify as “employers” may still be liable for aiding and abetting an employer’s discriminatory acts under NYSHRL § 296(6).

By way of background, Plaintiffs are two former employees of Astro Moving and Storage Co., Inc. (“Astro”). Both have prior criminal convictions for sexual offenses against young children. In June 2010, Astro entered into a contract with Allied Van Lines, Inc. (“Allied”), pursuant to which Astro agreed to perform moving services for Allied. Allied is a subsidiary of Sirva, Inc. (“Sirva”). The contract required Astro to adhere to Allied’s Certified Labor Program guidelines, which required that employees who “conduct the business of Allied at customer’s home or place of business . . . must have successfully passed a criminal background screen . . . as specifically approved by Allied.” If Astro violated the guidelines by using unscreened labor, it was subject to escalating monetary penalties. Under these guidelines, employees automatically failed the criminal background screen if they had ever been convicted of a sexual offense. In 2011, Plaintiffs consented to have Sirva perform background checks, which identified their convictions for sexual offenses against young children. Soon thereafter, Astro fired Plaintiffs.

Plaintiffs then filed a lawsuit in a New York federal district court against Astro, Allied, and Sirva, alleging that all Defendants violated the NYSHRL by failing to take into account all the factors enumerated in Article 23-A of the New York Corrections Law, as is required under NYSHRL § 296(15). Plaintiffs argued that Allied and Sirva should also be held liable for violating the NYSHRL even though they were not Plaintiffs’ direct employer, because Allied and Sirva played a role in the background checks that led to the terminations.

The district court dismissed the case against Allied and Sirva, finding § 296(15) applied only to direct “employers,” and could not extend to entities without any employment relationship with Plaintiffs. The district court also dismissed the aiding and abetting claim under § 296(6) because Allied and Sirva had not “participated in firing plaintiffs.” On appeal, the Second Circuit “certified” three questions to the New York Court of Appeals, which the Court of Appeals answered as follows:

1. Does NYSHRL § 296(15), prohibiting discrimination based on criminal convictions, limit liability to an aggrieved worker’s “employer”?

The New York Court of Appeals held that only an aggrieved party’s employer can be liable for discrimination on the basis of a criminal conviction under NYSHRL § 296(15). The NYSHRL states that it “shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association” to deny employment based on an individual’s prior criminal conviction “when such denial is in violation of the provisions of article twenty-three-A of the correction law.” Article 23-A prohibits a “public or private employer” from denying employment based on a criminal conviction unless, after analyzing eight specified factors, the employer can demonstrate that there is either a direct relationship between the criminal offense and the position sought or that granting employment would pose an unreasonable risk to the property or safety of others. Given this language, the court held that, “[b]ecause it incorporates Article 23-A by reference, section 296(15) of the Human Rights Law likewise limits liability to a public or private employer.”

2. If so, does the term “employer” extend beyond an employee’s “direct employer” to include those who exercise “a significant level of control over the discrimination policies and practices” of the direct employer?

The New York Court of Appeals identified four factors for determining who is an “employer” under the NYSHRL: (1) the selection and engagement of the worker; (2) the payment of salary and wages; (3) the power of dismissal; and (4) the power of control over the worker’s conduct. The court accordingly held that these factors “determine who may be a liable as an employer” under § 296(15), “with greatest emphasis placed on the alleged employer’s power ‘to order and control’ the employee in his or her performance of work.”

3. Does the “aiding and abetting” liability provision contained in NYSHRL § 296(6) apply to § 296(15), making liable an out-of-state entity that requires its New York State agent to discriminate based on an employee’s criminal history?

The New York Court of Appeals held that out-of-state non-employers may be liable under NYSHRL § 296(6) for aiding and abetting discrimination based on criminal convictions because, unlike § 296(15), § 296(6) “extends liability to persons and entities beyond joint employers, and this provision should be construed broadly.” Specifically, § 296(6) provides that it is unlawful “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.” Thus, the court found that the language of the NYSHRL’s “aiding and abetting” provision applies to any person or entity, including out-of-state entities who are not employers of an aggrieved party, as long as “the alleged discriminatory conduct had an impact in New York.”

If you believe that your employer has unlawfully discriminated against you based on your criminal history, we recommend consulting with a New York employment discrimination attorney as soon as possible to learn about your rights under the law.

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