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February 21st, 2017 | Debbie Lamb, Sterling Talent Solutions

NAPBS to File Amicus Brief for NY Court of Appeals Case

Lady Justice with scales

The background screening industry is regulated by local, state and federal laws. These laws are continuously being created and revised across the country on all levels. For example, the city of Los Angeles enacted the Fair Chance Initiative on January 1, 2017 and the Equal Employment Opportunity Commission (EEOC) updated the guidance on National Origin Discrimination. Decisions made by lower and appellate courts can also affect aspects of the background screening industry. Sterling is a member of many associations and organizations that keep an eye on court rulings that could impact the background screening industry. Sterling is an accredited member of the National Association of Professional Background Screeners (NAPBS), a non-profit trade association representing the interest of companies offering employment background screening services.

NAPBS monitors federal and local legislative and judicial decisions that could have an impact on the employment background screening industry. The organization will determine when engagement and action are needed on behalf of their 880 members. A recent background screening case tried before the New York Court of Appeals has garnered attention from the NAPBS. The Association has retained the attorneys at Seyfarth Shaw to file an amicus brief on their behalf in the matter of Griffin v Sirva Inc., which could impact the employment background screening industry.

What is Griffin v Sirva Inc.?

The Griffin v Sirva case was brought by two former employees, who were terminated after their past criminal convictions were discovered through a background check. The employees allege their former employer can be held liable under the New York State Human Rights Law (HRL) for employment discrimination on the basis of their criminal conviction. The plaintiffs worked for a local moving company in New York which contracted with Allied Van Lines to provide household moving services on behalf of Allied. The contract with Allied required anyone working on their jobs to undergo criminal background checks. Per Allied’s guidelines, a felony conviction for any sexual offense disqualified an individual from working on Allied jobs but did not disqualify an individual from working on other jobs for his or her employer. The plaintiffs, who both were convicted of felony sexual offenses, alleged the local moving company terminated them after receiving their background reports showing the criminal history.

The plaintiffs sued Allied and Sirva, Inc., an affiliated holding company, alleging they had violated the HRL by denying them employment because of their past criminal convictions or by requiring the local moving company to deny them employment because of the convictions. The New York Human Rights Law states it is “unlawful for anyone to deny employment to an individual because of a criminal conviction unless there is a direct relationship between the criminal offense and the employment at issue or if the employment would involve an unreasonable risk to property or the safety and welfare of individuals or the general public.”

The district court stated that Allied and Sirva were not liable under the HRL because they did not employ the plaintiffs. The court found that only employers could deny or aid and abet denial of employment. The decision was appealed and sent to the New York Second Circuit Appeals Court. They concluded the statute was unclear and that the non-discrimination and aiding and abetting provisions could apply to anyone, not just employers. Because of the need for more clarity, the Second Circuit asked the New York State of Appeals for clarification on three questions:

  1. Does the non-discrimination provision apply only to workers?
  2. Does the term employer include entities that are not direct employers but exercise controls over the policies and practices of the direct employer?
  3. Does the aiding-and-abetting provision apply to businesses that prohibit a contract from using certain employees based on their criminal convictions?

The Case’s Effect on the Background Screening Industry

The case will be presented before the New York Court of Appeals in the next year. According to the NAPBS, if the court interprets the Human Rights Laws broadly, the ruling could impact the background screening industry, including end-users and potentially consumer reporting agencies. The NAPBS will continue to monitor the situation and the status of the filed amicus brief.

Sterling, via NAPBS, will stay up-to-date on the appeals court decision and how it will impact the employment background screening industry. There are many components to background screening checks from criminal record checks to education and employment verification. Find out more about the basics of employee background checks by downloading our eBook, Background Screening 101.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.