Third Party Contractor Liability under the New York State Human Rights Laws

Catherine Savio writes:

Courthouse pillarsCopyright: bbourdages / 123RF Stock Photo

On May 31, 2017, the Second Circuit seemingly broadened the scope of liability under a New York state anti-discrimination law by holding that non-employer third parties can be held liable for violating rules regarding the use of a job applicant’s criminal history records in hiring processes.

The plaintiffs in Griffin v. Sirva Inc., No. 15-307 (2d. Cir. 2017), were employed by Astro Moving and Storage Company, a New York-based moving company. Astro is a contractor for the nationwide moving company Allied Vans Incorporated.  Allied prohibited the companies with which it contracted from employing individuals if they had ever been convicted of a sexual offense.

In 2011, Astro terminated the plaintiffs’ employment following a background check that revealed plaintiffs’ prior convictions for sexual offenses. In Griffin, the plaintiffs brought claims against Allied, a third-party contractor by whom they were not directly employed, under the New York State Human Rights Laws (“NYSHRL”) for violations of NYSHRL’s limitations on the use of criminal background checks in hiring decisions.

The United State District Court for the Eastern District of New York dismissed the claims brought against Allied, holding that the NYSHRL criminal conviction ban only applies to employers. On appeal, the Second Circuit overturned the lower-court’s decision,  holding that NYSHRL covers entities other than those who directly employ the workers, including third-party contractors. The court cited a four-part test from a 1985 fourth department decision, State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082 (4th Dep’t 1985), noting that the power to control a worker’s performance is the most important factor in determining whether or not an entity is acting as a workers “employer” for NYSHRL purposes. The Court remanded the case to the United States District Court for the Eastern District of New York to determine whether or not Allied qualified as an employer for NYSHRL liability purposes.

Catherine Savio is an associate in the firm’s Litigation Department, resident in its New York office.

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“You’re Fired” is not a Good Response to a Report of Harassment

This is not a post about any of the activities of the Trump Administration even though the headline uses his catch phrase.  We are taking a break from our multi-part series of commenting on the investigation of Trump’s ties to Russia to address a completely different topic.  Retaliation.  (Okay, maybe not a totally different topic depending on what really was the reason for Director Comey’s firing).

Law 360 is reporting that a former Giants’ defensive lineman is suing his former employer Home Towne Rx Pharmacy for firing him after he reported that two female employees had allegedly been sexually harassed by one of the company’s executive vice presidents.

60626072 - business man pointing the text: you're fired!

At this point, we literally know nothing about the case as we have not even seen the complaint.  However, according to the report, the complaint alleges that Leonard Marshall was fired only a few weeks after reporting that the women were complaining of harassment by the executive vice president.  It also alleges that the CEO of the company explicitly told Mr. Marshall that he was being fired for raising the complaint and spreading false claims against the other executive.

In my over 20 years of litigating employment discrimination claims, I can tell you that there are always two sides to every story, and sometimes more.  Even if the allegation that he was explicitly told that the complaint was the reason for his termination is false, at the least, the timing of Mr. Marshall’s termination should have given the company pause about whether they were justified in terminating his employment and whether that justification could be backed up by anything in writing.

If the allegation is true, the same question about documentation should be raised. For example, if the company did an investigation of the claims of harassment and found that Mr. Marshall and/or the women were making up the allegations, how did the company come to that conclusion?  Is it just a he said/she said situation or are there emails, texts, or other documentation that show the claims are false?

There are certainly cases where an employee or witness involved in a harassment investigation lies and a company is thus justified in firing that employee.  However, employers should tread very lightly in disciplining the complaining employee or a supporting witness for lying in the investigation.  In such cases, if I am counseling a client, I want to see more than it was a “feeling” that they lied.  I also want to see more than a bald assertion from the accused that it is all made up lies.  (Oh, look at that, maybe we did not take a break from commenting on politics after all.)

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