Thursday, September 8, 2016

How far does New York's anti-felony retaliation statute reach?

Did you know it is illegal in New York to fire someone (or refuse to hire them) because of his criminal conviction? The State Executive Law spells this out. Unless the conviction hits too close to home -- for example, an embezzler can't work as the comptroller somewhere -- the convict is entitled to a second chance.

The case is Griffin v. Sirva, Inc., decided on August 30. Plaintiffs worked for Astro Moving and Storage, who terminated their employment after discovering their prior convictions through a background check. Astro provides certain moving and storage services for Allied Van Lines. Sirva Worldwide is the parent company of North American Van Lines, the parent company of Allied. Astro is not a party to this case. Instead, Astro had signed a contract with Allied Van Lines prohibiting anyone convicted of certain crimes from working on Allied jobs. Plaintiffs say that Allied and Sirva, Inc., are Astro's parent and are therefore liable under New York law.

The question here is whether Allied and Sirva can be held liable for Astro's termination of plaintiffs. This is a complicated area under state law. One issue is whether the provision prohibiting felony discrimination limits liability only to the plaintiff's "employer." If so, another issue is how to determine if an entity is the plaintiff's "employer" under the statute. And what about "aider and abettor" liability under the statute? How does that play into this? Put broadly, how far does the law reach when someone is fired for his criminal record? And how many defendants can the plaintiff sue that have a contractual relationship with his immediate employer?

The law is not clear in this area. The Court of Appeals (Pooler, Hall and Carney) go through the statute and employer "single employer" liability principles as well as the "aiding and abetting" provision under the Human Rights Law before throwing up its hands and certifying this issue for the New York State Court of Appeals, which is able to issue a definitive ruling on these issues.

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