The Box Gets Even More Banned in New York – Update for June 1, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


banbox170601It’s no secret that ex-offenders find job prospects daunting upon their release from prison. Given a choice, especially in this litigious society, employers will pass on hiring someone with a felony conviction, if not for irrational fear that their employee will embark on a jobsite crime spree, then because if someone claims injury from what the employee does at work, the employer will be squirming in the witness chair trying to justify to a skeptical jury why he or she hired a criminal.

In the past few years, there have been some initiatives to “ban the box,” that is, to remove the question from employment applications about prior felony convictions. The states and cities that have passed laws banning the box largely limit the ban to government employment, and often only defer an employer’s asking the felony question until later in the employment process.

A notable exception is § 296(15) of New York State’s Human Rights Law, which prohibits discrimination on the basis of criminal record, unless there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

excon170601Yesterday, the 2nd Circuit put some teeth in the statute. Tranthony Griffin and Mike Godwin worked for Astro Moving, an agent of Allied Van Lines, a local mover who had signed a contract to be part of the Allied system. One of the terms of the contract prohibited Astro from employing people convicted of certain types of crimes. The local mover had discovered Tranthony and Mike had records, and fired them.

Tranthony and Mike sued Allied, arguing that it was liable for violating § 296(15) by aiding and abetting Astro’s violation through its contract. The district court threw out the suit, holding that Allied was not the guys’ employer, but rather Astro was.

The 2nd Circuit used a process known as certification, sending three state law questions over to New York State’s highest court for interpretation. The New York Court of Appeals sent answers back to the 2nd Circuit, which yesterday reversed the district court and sent the case back for trial.

realboss170601New York law determines whether an entity is an employer based on whether it controls (1) the selection and engagement of the employee; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the employee’s conduct.” The control Allied had over ordering and controlling whether Tranthony and Mike could be employees may be enough to make Allied into their employer, at least for purposes of the Human Rights Law.

The New York Court of Appeals also ruled that the Human Rights Law could reach out-of-state defendants like Allied.

The case will return to district court, where Tranthony and Mike will be allowed to make their case.

The ruling may prevent local employers, such as retail stores, fast-food establishments and service facilities, from hiding behind contracts with out-of-state entities in banning ex-felons from employment. At the same time, it may convince nervous employers to err on the side of caution, and simply avoid asking the question about prior record altogether. To be sure, it protects employers from being accused of negligence for hiring ex-offenders in the first place.

Griffin v. Sirva, Inc., Case No,. 15-1207 (2nd Cir., May 31, 2017)

– Thomas L. Root


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