Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage another company’s workers on an independent contractor basis would be wise to guard against another potential form of liability, for aiding and abetting acts that violate various anti-discrimination statutes, including both the New York State (“NYSHRL”) and New York City Human Rights Laws (“NYCHRL”) and the New Jersey Law Against Discrimination (“NJLAD”).

On March 28, 2017, the New York Court of Appeals heard oral arguments in Griffin v. Sirva, Inc., to answer three questions that had been certified by the U.S. Court of Appeals for the Second Circuit: (1) does the NYSHRL’s prohibition of employment discrimination based on workers’ criminal records limit liability to an aggrieved party’s “employer”; (2) if so, is the scope of the term “employer” limited to a worker’s direct employer, or does it include other entities who exercise a significant level of control over the direct employer’s discrimination policies and practices; and (3) does the portion of the NYSHRL that prohibits aiding and abetting the discriminatory acts of another apply to a non-New York entity that requires its New York agent to discriminate in employment based on a worker’s criminal history.

Griffin illustrates a concern faced by employers in a variety of industries, who subcontract certain types of work to employees of a separate business entity on an independent contractor basis. Among other tasks, companies may engage contractors to provide cleaning services, security, delivery of goods, installation of purchases or, as in Griffin, packing and moving services.  Such subcontracted services may be performed in a variety of settings, ranging from the company’s premises to its customers’ homes.  With increasing concerns regarding workplace violence, companies often choose to conduct their own criminal background checks on these contract workers, either personally or through an outside vendor, in an attempt to protect the company’s employees, customers, and property. This concern is particularly heightened when, as in Griffin, the contract workers in question will be performing services in the homes of a company’s customers.

In these types of scenarios, a question often arises regarding whether the company that engaged the contractors can be liable for violating state or city laws prohibiting discrimination based on criminal convictions, by virtue of requiring the background check, even though that company was not the workers’ direct employer. In resolving this question, courts typically rely on the concept of joint employment, analyzing the extent to which the company is involved in the hiring or firing of the contractors, or in exerting control over their working conditions. Presumably anticipating this sort of analysis, the parties in Griffin (including the State of New York, which filed an amicus curiae brief and was permitted to participate in oral argument) focused their briefing and arguments on whether a company that performs background checks on its contract workers should be deemed an employer under the NYSHRL.  Through its questions at oral argument, however, the court appeared to indicate that there may be a simpler resolution in this type of case, which does not require addressing the complex question of whether the company requiring the background checks is the workers’ employer or joint employer.

In addition to directly prohibiting discrimination based on criminal history, the NYSHRL states that it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under [the NYSHRL], or to attempt to do so.” “Person” is defined as including “one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” Based on this expansive language, several judges seemed to indicate that the NYSHRL’s “aiding and abetting” provision was sufficiently broad to encompass third parties who conduct background checks on contractors, regardless of whether such entities would otherwise be considered the contract workers’ employer or joint employer.  Assuming the “aiding and abetting” provision covers such conduct, multiple judges noted that imposing liability under that provision would be simpler than wrestling with the joint employment issue.  Further, the judges expressed concern that expanding liability under the main section of the NYSHRL to non-employers would render the “aiding and abetting” provision superfluous.

While it is premature to predict how the Court of Appeals may ultimately rule in Griffin, particularly given the recent unexpected death of one of the court’s seven members, Judge Sheila Abdus-Salaam, companies who engage workers on an independent contractor basis should be aware that potential joint employment issues may not be their only concern with regard to such workers. Regardless of whether a company exerts sufficient control over its contract workers to be deemed a joint employer, if the company operates in a jurisdiction whose anti-discrimination laws allow for “aiding and abetting” liability, that provision may serve as an alternative basis of potential liability for a company that conducts criminal background checks on contract workers engaged through a separate business entity.  Specifically, because the NYSHRL, NYCHRL, and NJLAD each include broad provisions that prohibit any person or entity from aiding, abetting, inciting, compelling, or coercing any acts that violate those laws, businesses that operate in New York State, New York City, or New Jersey should ensure that any background check requirement imposed on another entity’s workers complies with all applicable “ban-the-box” and anti-discrimination laws (e.g., NY State Correction Law Article 23-A, the NYC Fair Chance Act, and the NJ Opportunity to Compete Act), in order to avoid potential liability under the applicable “aiding and abetting” provisions in those jurisdictions.

We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence.

Below is their description of the event:

Violence in the workplace can range from bullying and harassment to physical attacks to fatal mass shootings. Workplace violence has unfortunately become one of the most common forms of violence that people are likely to encounter during their lives.

This informative webinar will:

  • Discuss ways of identifying the warning signs and recognizing behaviors that are precursors;
  • Summarize strategies to assist with hiring, managing and firing employees;
  • Present guidance on how to survive in the event their workplace is the scene of an active shooter scenario; and
  • Review legal consequences of failing to take appropriate steps to avoid an incident.

To learn more about it, visit Epstein Becker Green or click here for complimentary registration.

by Margaret C. Thering and Lauri F. Rasnick

Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence.  Also last month, the National Institute for Occupational Safety and Health and the Injury Control Research Center at West Virginia University published a paper entitled “Workplace Homicides Among U.S. Women: The Role of Intimate Partner Violence” in the Annals of Epidemiology.  The study found that from 2003 to 2008, 648 women were murdered in the workplace.  And workplace homicides against women are on the rise – in 2010 they were up 13% (even though workplace homicides have generally been declining).

Employer liability can result from workplace violence incidents, even when committed by a non-employee.  Indeed, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  Guidance is also offered by OSHA to all employers to help them prepare for and handle emergencies and to develop a workplace violence program. A more detailed discussion is located on our OSHA blog.  See Workplace Violence Policies and Background Checks Are Essential Components of a Prevention Plan.  Failing to properly implement procedures or handle these difficult situations correctly may lead to liability or even OSHA citations.

Given these trends, employers should review ways they can prevent domestic violence in the workplace and accommodate employees who may be victims of domestic violence:

  • Employers should review their safety policies and procedures and consider ways in which they address workplace violence issues.
  • Policies prohibiting women from working alone are not advisable since they could violate anti-discrimination laws.  Nevertheless, sex-neutral policies about employees working alone (especially during certain shifts when there are fewer people or a higher risk of violence) may be advisable.
  • As many workplace homicides occur in parking lots, employers may want to examine their parking lot areas to see whether they are adequately lit, or whether security patrol or escorts may be helpful to reduce possible violent attacks.
  • To assist workers facing domestic violence, employers may want to adopt policies that encourage workers concerned about domestic violence to seek protection or particular accommodations in the workplace without fear of retaliation.
  • Employers should review their policies and ensure they do not directly or indirectly impact certain protected groups adversely when domestic violence is at issue.
  • Employers may want to include domestic violence victims as a protected class in their equal employment opportunity statements/policies.  Several jurisdictions, including New York, prohibit discrimination against victims of domestic violence, and several other jurisdictions have similar legislation pending.
  • Employees who are victims of domestic violence, depending on the severity of the violence, may fall under the protections of the Family Medical Leave Act or even the Americans with Disabilities Act (“ADA”) in certain cases.  Thus, employers receiving requests for leave or other accommodations for victims of domestic violence should consider whether there are federal legal requirements in responding to such requests.
  • Many states, including New York and California, require employers to provide victims of domestic violence with time off for certain reasons, such as attending court proceedings.  Employers should make sure they are complying with applicable state domestic violence laws if time off for domestic violence-related proceedings is requested.
  • In the absence of an applicable state law providing leave for victims of domestic violence, employers everywhere should make sure that requests for time off to attend a court proceeding due to one’s status as a domestic violence victim are treated in the same way as requests for time off to attend other court proceedings.  Failure to do so could lead to claim for disparate treatment.
  • Employers should review their anti-bullying and workplace violence policies.  The policies should cover situations in which intimate partners might be bullying or otherwise abusing each other in the workplace.
  • It may be beneficial for employers to include a discussion on domestic violence during their anti-bullying and workplace violence training.