The New York Court of Appeals has issued a favorable decision in Griffin v. Sirva, a case in which CDIA filed an amicus. The decision was 5-1. This case presents three certified questions to the New York Court of Appeals from the U.S. Court of Appeals for the Second Circuit relating to the scope and applicability of two statutes that impact the use of criminal records in applications for employment in New York: (1) is Section 15 of the Human Rights Law limited to “employers” (or may a third party be liable for discriminatory hiring practices); (2) if limited to “employers”, what is the test to determine if someone is the “employer”; and (3) may aiding and abetting liability be imposed on “an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of §296(15)? The Court found that Sec. 15 of the HRL applied to employers only, and not to others, including background check companies.
Under § 296(15) it is unlawful to deny a job to a person when that denial violates Correction Law Art. 23-A. The Correction Law limits employment decisions based on an applicant’s criminal history.
In the facts presented in the case, a Astro employed two movers for a number of years in its business. Each person had a prior criminal conviction. At one point, Allied Trucking entered into a contract with Astro under which Astro agreed to serve as Allied’s limited agent and fulfill Allied’s moving contracts in a local area. In the contract, Astro agreed that, in fulfilling services for Allied, it would not use any employees who do not meet Allied’s background screening requirements. Upon winning the contract, Astro performed a background check on the two employees, who do not meet Allied’s requirements. Astro discharged both workers, who had prior convictions for sexual offenses against children. Plaintiffs sued Astro, Allied and Astro’s parent company (which was the entity with the contract with HireRight, the background screening company). The background screening company is not named in the suit.
After answering the first certified question in the affirmative, the Court reformulated the second certified question and held that “common-law principles, as discussed in State Div. of Human
Rights v GTE Corp., determine who may be liable as an employer under section 296 (15) of the Human Rights Law, with greatest emphasis placed on the alleged employer’s power ‘to order and control’ the employee in his or her performance of work.”
The dissent felt a broader reading of employment was in order, especially since the HRL requires a liberal application. The dissent also noted the “changing nature of the employer-employee construct has a particularly adverse impact on job opportunities for persons with prior criminal convictions. Non-traditional employment structures are now commonplace, such that several persons or business entities are positioned to significantly affect the employment relationship. . .For several reasons, large numbers of individuals with criminal histories have limited employment options and find themselves on the fringes of the labor market, and more reliant than other job applicants on temporary staffing companies.” (Citations omitted). The dissent added that many applicants are being disqualified on the basis of a criminal history and the laws in question in the case are intended to remediate those concerns.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More