[Synopsis: NY State’s Court of Appeals leaves two men with criminal records in employment limbo.]
Remember last month’s Main Feature on hiring imperfect people?
A few months ago we looked at the Civil Rights Act of 1964 and our evolving ideals brought to us by the Equal Employment Opportunity Commission. You know, the push to “ban the box” and make it illegal to ask on an application whether the person has a criminal history?
So all of this (and more!) came up in a recent case heard by the US Court of Appeals filed by two men against Allied Van Lines. It’s groundbreaking. It’s convoluted. It’s…near impossible to understand. But that’s what I’m here for.
The Basics of the Case
- Two men who had served time for sex crimes were working for a moving company that performed work through an agency contract with Allied.
- Criminal record checks required by Allied brought the two men’s convictions to light, resulting in them being terminated.
- The two men filed a lawsuit claiming discrimination by their employer, Allied, based on the New York State Human Rights Law (fashioned after the Civil Rights Act). It contains a provision covering criminal conviction discrimination.
- Confusion arose with the question of whether Allied was, by definition, the men’s “employer”.
- Allied states they have no management or ownership relationship with the moving company the two men worked for, nor do they have any control over that company’s hiring, pay, scheduling or discipline practices.
- A lower court decided Allied wasn’t their employer and the case was dismissed.
Wait a minute! Time out! If Allied maintains there is this operational distance between them and the moving company under contract and uses such assertions to claim they are not the employer of the two men…then how is it they can have them terminated?
Even the US Court of Appeals is having a hard time grappling with the meaning of the term “employer” and how to apply New York State’s discrimination laws. On this case:
“Writing for the Second Circuit, Judge Rosemary S. Pooler said judicial interpretation of New York Executive Law Section 296(15) “is too undeveloped” for the appeals court to predict how the New York Court of Appeals would resolve any of the three questions it identified as crucial to a ruling on Griffin’s and Godwin’s discrimination claims against Allied and Sirva.”
In other words, the judges don’t even know what to do in this case which, as the article states:
“…is important from a business perspective because companies operating in New York state need to know whether they can conduct criminal background checks on workers and job applicants, the types of checks they can conduct, how any information collected can be used and the extent of their potential liability for employment bias if they fail to comply with legal requirements.”
So as employers we won’t know what to expect until the courts figure it out. To add to the fun, how the case turns out could very well have implications far beyond New York by impacting the many states that have similar laws.
The Easy Answer?
There is none. Obviously, any time we turn away an applicant because of their criminal history we are inviting a potential legal mess. At the same time, taking on someone with a criminal past can be ruinous if a box of jewelry suddenly goes missing.
Until the courts get their own act together the best we can do is use our absolute best and fair judgments.
And maybe go get a law degree.