Griffin v. Sirva Inc., No. 15-1307 (2d Cir. 2016)

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Plaintiffs, two former employees of Astro, filed suit against Astro, Allied, and Sirva, alleging violations of the New York State Human Rights Law (NYSHRL), N.Y. Exec. 296(15). The court noted that this case presents the following three questions that the New York Court of Appeals has not had the opportunity to address and thus the court certified to the New York State Court of Appeals: First, does Section 296(15) limit liability for unlawful denial of employment only to the aggrieved party’s “employer”? Second, if Section 296(15) is limited in that way, how should courts determine whether an entity is the aggrieved party’s “employer” for the purposes of a claim under Section 296(15)? Third, does the “aiding and abetting” liability provision of the NYSHRL, Section 296(6), apply to Section 296(15) such that a non‐employer may be liable under Section 296(15) as an aider and abettor of an employer’s unlawful denial of employment?

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15 1307 Griffin v. Sirva Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ TRATHONY GRIFFIN and MICHAEL GODWIN, Plaintiffs Appellants, v. SIRVA INC. and ALLIED VAN LINES, INC.,1 Defendants Appellees. ____________________ 26 Before: POOLER, HALL, and CARNEY, Circuit Judges. 27 28 York (Brodie, J.) granting summary judgment in favor of defendants appellees August Term, 2015 (Argued: January 8, 2016 Decided: August 30, 2016) Docket No. 15 1307 ____________________ 1 Appeal from United States District Court for the Eastern District of New The Clerk of Court is respectfully directed to amend the caption as above. 1 Sirva, Inc. and Allied Van Lines, Inc. and denying plaintiffs appellants Trathony 2 Griffin and Michael Godwin’s motion for partial summary judgment. Griffin and 3 Godwin’s direct employer, Astro Moving and Storage Co. (“Astro”), which is not 4 a party to this appeal, terminated Griffin and Godwin after discovering their past 5 criminal convictions through a background check. Because Astro had signed a 6 contract with Allied prohibiting any individuals convicted of certain crimes from 7 working on Allied jobs, Griffin and Godwin allege that Allied and Sirva, Inc., as 8 Allied’s parent, can be held liable under the New York State Human Rights Law, 9 N.Y. Exec. Law § 290 et seq., for employment discrimination on the basis of their 10 criminal convictions. In its ruling on the parties’ cross motions for summary 11 judgment, the district court found that Allied and Sirva were not Griffin and 12 Godwin’s “direct employers,” and therefore held they could not be liable for 13 “denying employment” on the basis of a criminal conviction. See N.Y. Exec. Law 14 § 296(15). Because we are of the view that there is insufficient New York State 15 authority on the issue of who may be held liable under Section 296(15) to allow 2 1 us to predict how the New York Court of Appeals would rule, we seek the views 2 of the New York Court of Appeals. 3 4 5 6 7 8 9 10 11 12 13 Questions certified. ____________________ STUART LICHTEN, Lichten & Bright, P.C., New York, NY, for Plaintiffs Appellants. GEORGE W. WRIGHT, George W. Wright & Associates, LLC, New York, NY, for Defendants Appellees. POOLER, Circuit Judge: 14 This appeal presents the question of who may be held liable under Section 15 296(15) of the New York State Human Rights Law (“NYSHRL”), which prohibits 16 the denial of employment on the basis of a criminal conviction. See N.Y. Exec. 17 Law § 296(15). The plaintiffs are two former employees of Astro Moving and 18 Storage Co. (“Astro”), which, as its name suggests, provides certain moving and 19 storage services as a “disclosed households goods agent” on behalf of defendant 20 appellee Allied Van Lines, Inc. (“Allied”). Defendant appellee Sirva, Inc. 21 (“Sirva”) is a holding company of Sirva Worldwide, Inc. (“Sirva Worldwide”) 3 1 and Sirva Worldwide is the parent company of North American Van Lines, Inc. 2 (“Van Lines”). Van Lines is the parent company of Allied. 3 4 working on Allied jobs to undergo a criminal background check. If an employee 5 was found to have one of several serious criminal convictions on his or her 6 record, Allied effectively prohibited Astro from allowing those employees to 7 work on Allied jobs. 8 9 in February 2011. When the background check was completed, the contractor In its agency contract with Allied, Astro agreed to require any employees Griffin and Godwin both submitted consent forms for a background check 10 that performed the check found that Griffin and Godwin had both been 11 convicted of certain felony sexual offenses. Sometime thereafter, the President of 12 Astro, Keith Verderber, terminated their employment.2 Griffin and Godwin, 13 along with another terminated employee not party to this appeal, then brought 14 suit against Astro, Allied, and Sirva, alleging violations of the NYSHRL, N.Y. 2 There is some dispute in the record regarding whether Griffin was actually “terminated” or whether he voluntarily resigned. For the purposes of this opinion, we assume, without deciding, that Griffin was terminated because of his criminal conviction. 4 1 Exec. Law § 290 et seq., and against Astro alone for violations of 42 U.S.C. § 1981, 2 the Fair Labor Standards Act (“FLSA”), and the New York Labor Law. Plaintiffs 3 then moved for partial summary judgment against all defendants on the issue of 4 liability under NYSHRL § 296(15) for discrimination on the basis of a criminal 5 conviction. Sirva and Allied then cross moved for summary judgment. 6 7 judgment and granted Sirva and Allied’s motion. The district court determined 8 that Section 296(15) applied only to the aggrieved party’s “employer.” The 9 district court examined a variety of cases discussing how an entity is determined 10 to be an individual’s “employer.” Because Griffin and Godwin were not directly 11 employed by either Allied or Sirva, the district court determined that Allied and 12 Sirva could not be held liable under the NYSHRL for Astro’s termination of 13 Griffin and Godwin.3 The district court (Brodie, J.) denied Plaintiffs’ motion for partial summary The case against Astro proceeded to trial, where a jury found Astro liable only for violations of the Fair Labor Standards Act and not liable for a violation of the NYSHRL. 5 3 1 The question of who may be held liable under Section 296(15) is an 2 unresolved question of New York State law. The case presents the following 3 three questions that the New York Court of Appeals has not had the opportunity 4 to address: First, does Section 296(15) limit liability for unlawful denial of employment 5 6 only to the aggrieved party’s “employer”? Second, if Section 296(15) is limited in 7 that way, how should courts determine whether an entity is the aggrieved 8 party’s “employer” for the purposes of a claim under Section 296(15)? Third, does 9 the “aiding and abetting” liability provision of the NYSHRL, Section 296(6), 10 apply to Section 296(15) such that a non employer may be liable under Section 11 296(15) as an aider and abettor of an employer’s unlawful denial of employment? 12 Because we conclude that New York law is unsettled with respect to these 13 three questions, we conclude the law is too undeveloped “in this area to enable 14 us to predict with confidence how the New York Court of Appeals would resolve 15 these issues of New York State law presented on appeal.” Licci ex rel. Licci v. 16 Lebanese Canadian Bank, SAL, 673 F.3d 50, 55 (2d Cir.), certified question accepted sub 6 1 nom. Licci v. Lebanese Canadian Bank, 18 N.Y.3d 952 (2012), and certified question 2 answered sub nom. Licci v. Lebanese Canadian Bank, 20 N.Y. 3d 327 (2012). 3 4 Therefore, we certify to the New York State Court of Appeals these three questions concerning liability under NYSHRL Section 296(15). 5 BACKGROUND 6 The facts set forth below are drawn from the district court’s opinion 7 denying Griffin and Godwin’s motion for partial summary judgment and 8 granting Sirva and Allied’s motion for summary judgment. See Griffin v. Sirva 9 Inc., No. 11 CV 1844 MKB, 2014 WL 2434196 (E.D.N.Y. May 29, 2014). With a few 10 exceptions, the relevant material facts are not in dispute. Thus we provide only 11 those facts we think necessary for a complete understanding of this appeal and 12 the questions of law posed. 13 I. The Agency Contract 14 Griffin and Godwin are both former laborer employees of Astro, which 15 “provides local warehouse services and transportation services under its own 16 authority from the New York State Department of Transportation.” App’x at 274. 7 1 Under its agency contract with Allied, Astro was entitled to, among other things, 2 “pack, crate, prepare for transportation, receive, load, transfer, unload, store, 3 warehouse, deliver, and otherwise to service . . . shipments of household goods 4 and all other freight which [Allied] ha[d] authority to transport[.]” App’x at 62. 5 The agency contract also required Astro to comply with Allied’s “Certified 6 Labor Program” (the “ACLP”). The ACLP required Astro to ensure that all of its 7 employees working on any Allied jobs successfully complete a criminal 8 background check. Under the ACLP, Allied was granted the “sole authority and 9 responsibility to establish and determine the consent process, adjudication 10 standards, and documentation criteria for both certification of individuals and 11 alternative vendors” running the background checks on employees. App’x at 63. 12 Allied was also entitled to conduct “periodic audits” of Astro’s employees to 13 “verify the use of certified individuals and compliance with the ACLP.” App’x at 14 64. If Astro was found in non compliance, Allied was permitted to levy a series 15 of fines based on whether the violation was a first, second, or third offense. 8 1 Allied maintains certain “adjudication guidelines” that are “used to 2 determine the eligibility of its agents’ contractors and employees for 3 participation in Allied’s interstate moving services.” App’x at 112. Under the 4 guidelines, an employee’s “felony conviction for any (A) sexual offense; (B) 5 kidnapping; (C) death related offenses; (D) attempted murder; (E) assault with a 6 deadly weapon; (F) assault with intent to kill or (G) armed robbery, mandates the 7 [employee’s] permanent disqualification from any jobs performed by” one of 8 Allied’s agents. App’x at 112. 9 To facilitate the background screening process, Sirva Worldwide entered 10 into an agreement with HireRight Solutions, Inc. (“HireRight”), a vendor 11 providing background screening services, effective August 24, 2010. After an 12 employee fills out a consent form, HireRight conducts a background check and 13 then provides one of Allied’s agents with information as to whether a particular 14 employee is “cleared or not” from working on any of Allied’s jobs. App’x at 48. 9 1 II. The Relationship between Allied and Astro 2 Seventy to eighty percent of Astro’s business is projects for Allied. But 3 Allied asserts it is a separate legal entity from Astro, and maintains that it does 4 not share employees, common ownership, or management with Astro. Further, 5 Allied states it “does not control ASTRO’s local moving business, . . . nor does 6 ALLIED control ASTRO’s employment policies or practices relating to its own 7 business.” App’x at 96. Allied further asserts that “Allied has no authority to 8 select or hire Astro’s employees and has never possessed such authority” and 9 that Allied “does not establish the salaries or benefits of Astro’s employees, make 10 any payments to Astro’s employees, have the authority to discipline or dismiss 11 Astro’s employees, control the conduct of Astro’s employees, or control the work 12 schedules of, assign jobs to, or supervise the work of Astro’s employees.” Griffin, 13 2014 WL 2434196, at *2. 14 15 16 17 18 III. Griffin and Godwin’s Convictions, Employment with Astro, and Terminations Griffin began working for Astro in August 2008 and Godwin began working for the company in May 2010. Both worked as “helpers,” which 10 1 required them to, among other things, pack household goods for transportation 2 and move goods “in and out of ASTRO’s customer’s homes.” App’x at 93. 3 In 1997, Griffin pleaded guilty to first degree child abuse and sexual 4 misconduct. He was sentenced to six to twelve years’ imprisonment and served 5 ten years. He is designated a “Sexually Violent Offender,” and is currently under 6 the supervision of the New York State Division of Parole with conditions that he 7 is not permitted to have contact with children under the age of eighteen unless 8 he is in the company of another adult. 9 In 1999, Godwin pleaded guilty to rape in the first degree and sexual abuse 10 in the first degree. He was sentenced to nine years’ imprisonment and was 11 released in 2008. He remained on parole until May 2010. Like Griffin, Godwin is 12 also designated a “Sexually Violent Offender” and subject to the same condition 13 that he have no contact with children under the age of eighteen unless in the 14 company of another adult. 15 16 Although Griffin began working for Astro in August 2008, he was not asked to consent to a background check until 2011, and both Godwin’s and 11 1 Griffin’s consent forms were submitted to HireRight in February 2011. In 2 response to a question asking whether Griffin had “been convicted of any felony 3 criminal offenses,” Griffin admitted that he was convicted of “child abuse.” 4 App’x at 79. When HireRight’s reports on Griffin and Godwin were returned, 5 both reports stated that neither was eligible to work on any Allied jobs. 6 DISCUSSION 7 I. 8 Standard of Review It is settled that this court “review[s] a grant of summary judgment de novo, 9 . . . constru[ing] the evidence in the light most favorable to the nonmoving party 10 and draw[ing] all reasonable inferences in that party s favor.” Tracy v. Freshwater, 11 623 F.3d 90, 95 (2d Cir. 2010). 12 Sirva and Allied dispute the standard of review, claiming that because the 13 jury’s verdict found that Astro did not unlawfully violate the New York State 14 Human Rights Law (“NYSHRL”), that Griffin and Godwin are bound by this 15 verdict on appeal. But “[u]pon review of a grant by a district court of a motion 16 for summary judgment, a federal appellate court may examine only the evidence 12 1 which was before the district court.” Katir v. Columbia Univ., 15 F.3d 23, 25 (2d Cir. 2 1994) (internal quotation marks omitted) (emphasis added). Indeed, the “district 3 court’s grant of summary judgment must be examined independently of the 4 evidence presented at trial.” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 5 214, 242 (4th Cir. 2002). This court’s “review is limited to the record presented to 6 the district court at the time of summary judgment. . . . [This court] likewise 7 do[es] not rely on evidence introduced at trial or on the jury’s verdict.” Lippi v. 8 City Bank, 955 F.2d 599, 604 (9th Cir. 1992). “Neither the evidence offered 9 subsequently at the trial nor the verdict is relevant.” Voutour v. Vitale, 761 F.2d 10 812, 817 (1st Cir. 1985). 11 II. 12 The New York State Human Rights Law A. Background 13 “As a general matter, it is unlawful in [New York] for any public or private 14 employer to deny any license or employment application ‘by reason of the 15 individual s having been previously convicted of one or more criminal 16 offenses.’” Acosta v. N.Y.C. Dep t of Educ., 16 N.Y.3d 309, 314 (2011) (quoting N.Y. 13 1 Correct. Law § 752). “This general bar was enacted to further certain goals that 2 the Legislature has identified as among the ‘general purposes’ of the Penal Law, 3 namely, ‘the rehabilitation of those convicted’ and ‘the promotion of their 4 successful and productive reentry and reintegration into society.’” Id. at 314 5 (quoting NYSHRL § 296). The statute provides in relevant part that 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 [i]t shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty three A of the correction law. Further, there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee’s past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee. N.Y. Exec. Law § 296(15). There are, however, two significant exceptions to this 24 general prohibition. The first exception arises where “there is a direct 25 relationship between one or more of the previous criminal offenses and the 14 1 specific license or employment sought or held by the individual.” N.Y. Correct. 2 Law § 752(1). The Legislature has clarified that a “‘[d]irect relationship’ means 3 that the nature of criminal conduct for which the person was convicted has a 4 direct bearing on his fitness or ability to perform one or more of the duties or 5 responsibilities necessarily related to the license, opportunity, or job in question.” 6 Id. § 750(3). 7 The second exception allows for adverse treatment where “the issuance or 8 continuation of the license or the granting or continuation of the employment 9 would involve an unreasonable risk to property or to the safety or welfare of 10 specific individuals or the general public.” Id. § 752(2). The New York Court of 11 Appeals has “noted that the Legislature has not provided a statutory definition 12 of the phrase ‘unreasonable risk’ in this context ‘for the obvious reason that a 13 finding of unreasonable risk depends upon a subjective analysis of a variety of 14 considerations relating to the nature of the license or employment sought and the 15 prior misconduct.’” Acosta, 16 N.Y.3d at 315 (quoting In re Bonacorsa v. Van Lindt, 16 71 N.Y.2d 605, 612 (1988)). 15 1 Although the “unreasonable risk” analysis under the second exception is a 2 subjective one, Section 753(1) of the Correction Law provides that, “[i]n making a 3 determination” as to whether either the “direct relationship” exception or the 4 “unreasonable risk” exception applies, “the public agency or private employer 5 shall consider” the following eight factors: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (a) The public policy of [New York], as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. (b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person. (c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. (d) The time which has elapsed since the occurrence of the criminal offense or offenses. (e) The age of the person at the time of occurrence of the criminal offense or offenses. (f) The seriousness of the offense or offenses. (g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. 16 1 2 3 4 5 (h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. N.Y. Correct. Law. § 753(1). “A failure to take into consideration each of these 6 factors results in a failure to comply with the Correction Law’s mandatory 7 directive.” Acosta, 16 N.Y.3d at 316 (citing In re Arrocha v. Bd. of Educ. of City of 8 N.Y., 93 N.Y.2d 361, 364 (1999)). 9 10 11 B. Analysis While there is a considerable body of law interpreting the NYSHRL by 12 both state and federal courts, few cases have addressed the provisions at issue in 13 this case. The district court held that Allied and Sirva cannot be liable under the 14 NYSHRL in this case because they were not Griffin and Godwin’s “employers.” 15 However, we find there are three problems with this determination because of 16 open and unresolved questions of New York State law. 17 First, it is unclear whether Section 296(15) is strictly limited to 18 “employers.” The district court inferred that to “’deny employment,’ the denying 19 entity must be an employer as understood by the caselaw interpreting the 17 1 NYSHRL.” Griffin, 2014 WL 2434196, at *11. While the New York Court of 2 Appeals may interpret the statute in this manner, we cannot say that this 3 interpretation is obviously dictated by the statute’s language or existing case law. 4 Second, even if Section 296(15) is limited to “employers,” that does not 5 resolve the question of the scope of the term “employer.” “The Human Rights 6 Law definition of employer [refers] only to the number of persons employed[.]” 7 Patrowich v. Chem. Bank, 63 N.Y.2d 541, 543 (1984) (citation omitted); see also N.Y. 8 Exec. Law § 292(5). While New York courts have provided balancing tests to 9 determine whether an entity is an “employer,” they have not applied those tests 10 to Section 296(15). There is also reason to believe that the definition of 11 “employer” could be broader in the context of Section 296(15). For example, in 12 most cases it is unlikely that a New York company would be bound by a 13 contractual term to apply a policy that explicitly discriminates on the basis of 14 race or sex. But in this case, the agency contract explicitly required Astro to 15 discriminate on the basis of prior criminal convictions. Thus, Section 296(15) may 16 be distinguishable from other provisions of the NYSHRL having to do with 18 1 discrimination on the basis of race or sex, and may well require a broader 2 definition of “employer” to effectuate its prohibition against discrimination. 3 Third, the NYSHRL also provides for “aiding and abetting” liability. See 4 N.Y. Exec. Law § 296(6). We have found no New York State case law applying 5 this provision to Section 296(15). It is possible that an agency contract, such as the 6 one at issue in this case, could fall within the ambit of aiding and abetting 7 liability under Section 296(6). 8 i. Whether the Statutory Provision is Expressly Limited to 9 “Employers” 10 11 Griffin and Godwin argue that because § 296(15) on its face is not limited 12 to employers, “it is not necessary for Griffin and Godwin to prove that SIRVA 13 and ALLIED were their employers.” Appellants’ Br. at 14. For their part, Allied 14 and Sirva claim that Section 296(15) “only applies to employers.” Appellees’ Br. 15 at 18. While the word “employer” appears nowhere in the first half of the 16 provision, which addresses discrimination on the basis of a conviction, the word 17 is used twice in the second half of the provision addressing negligent hiring 18 practices. 19 1 Although Sirva and Allied insist that the “repeated use of the term 2 ‘employer’” in Section 296(15) “leaves no doubt that its discrimination provisions 3 apply only to employers,” Appellees’ Br. at 19, we find this argument 4 unpersuasive absent definitive case law from New York State courts. The second 5 half of this provision addresses an entirely different subject matter than the first 6 portion. In fact, that the term is used twice in the second half of the provision 7 makes its absence in the first half addressing discrimination even more glaring. 8 9 Sirva and Allied also suggest that a limitation to “employers” can be inferred because “only an employer can ‘deny employment,’” a position the 10 district court adopted. See Griffin, 2014 WL 2434196, at *11. Further, Sirva and 11 Allied point to Section 753 of the New York State Correction Law, incorporated 12 by reference in Section 296(15), which states that “[i]n making a determination 13 pursuant to section seven hundred fifty two of this chapter, the public agency or 14 private employer shall consider” the eight relevant factors. N.Y. Correct. Law 15 § 753(2) (emphasis added). 20 1 Griffin and Godwin respond that the “drafters of the Executive Law 2 provision here, . . . took great pains precisely to avoid limitation of the law’s 3 applicability to employers.” Appellants’ Br. at 9. They contend that other sections 4 of the NYSHRL demonstrate this legislative intent. For example, the provision 5 barring employment discrimination on the basis of age, race, creed, color, 6 national origin, sexual orientation, military status, sex, disability, predisposing 7 genetic characteristics, marital status, and domestic violence victim status, is 8 expressly limited to an “employer or licensing agency.” N.Y. Exec. Law § 9 296(1)(a). Similarly, the prohibition on discrimination in training programs 10 applies only to an “employer, labor organization, employment agency or any 11 joint labor management committee controlling apprentice training programs.” Id. 12 § 296(1 a). 13 Neither party cites convincing New York State legal authority to support 14 their claims. Absent clear authority in the precedents of the New York State 15 Court of Appeals, we conclude it is appropriate to certify these questions to that 16 Court, respectfully further guidance on these questions of New York law. 21 1 ii. The Scope of the term “Employer” 2 Even if we were to decide that § 296(15) is strictly limited to the aggrieved 3 party’s “employer,” we would still have to decide the scope of the term 4 “employer.” State courts have held that “[g]enerally, four elements are 5 considered in determining whether the relationship of employer and employee 6 exists: “(1) the selection and engagement of the servant; (2) the payment of salary 7 or wages; (3) the power of dismissal; and (4) the power of control of the servant s 8 conduct.” State Div. of Human Rights v. GTE Corp., 487 N.Y.S.2d 234, 235 (4th 9 Dep’t 1985) (internal quotation marks omitted). Courts have often stressed that 10 the “really essential element of the relationship is the right of control, that is, the 11 right of one person, the master, to order and control another, the servant, in the 12 performance of work by the latter.” Id. (internal quotation marks omitted). 13 The district court seems to have relied on this factor based analysis in its 14 determination that Allied and Sirva were not Griffin and Godwin’s “employer.” 15 The district court concluded that Allied and Sirva “had no employment 16 relationship” with Griffin and Godwin and did not have “any ownership interest 22 1 in Astro.” Griffin, 2014 WL 2434196, at *12. The district court also found that Sirva 2 and Allied did not have any other “liability engendering authority over 3 Plaintiffs” such as (1) the power to hire and fire employees, (2) supervision and 4 control of employee work schedules or conditions of employment, (3) 5 determination of the rate and method of payment, and (4) maintenance of 6 employment records. Id. Furthermore, the district court observed that according 7 to Thomas Lambert, the Director of Agency Services at Allied, “Allied did not 8 instruct Astro to terminate Griffin’s or Godwin’s employment[,] and no one had 9 any advance notice of the termination of their employment.” Id. at *13. Finally, 10 the district court noted that Astro could have simply moved Griffin and Godwin 11 off of Allied jobs. Id. 12 But these factors have been taken into account by courts when addressing 13 whether an individual is liable under other provisions of the NYSHRL. In 14 Patrowich v. Chemical Bank, the New York Court of Appeals held that an 15 individual is not subject to suit under § 296 of the NYSHRL as an employer 16 unless he “ha[s] an ownership interest” in the employer or if the individual has 23 1 “the power to do more than carry out personnel decisions made by others.” 63 2 N.Y.2d at 542. Many cases relied on by the district court in its analysis applied 3 this standard. See e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (an 4 individual may not be liable “if he is not shown to have any ownership interest 5 or any power to do more than carry out personnel decisions made by others.”), 6 abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); 7 Scalera v. Electrograph Sys., Inc., 848 F. Supp. 2d 352, 371 (E.D.N.Y. 2012). 8 But it is not clear that the factors relevant to individual liability under the 9 NYSHRL should control or whether other factors might merit consideration 10 where, as here, the question is whether liability may be imposed on another 11 corporation that has simply a contractual relationship with the employing 12 company. The Court of Appeals does not appear to have addressed the scope of 13 the term “employer” in these circumstances. See Kaiser v. Raoul’s Rest. Corp., 899 14 N.Y.S.2d 210, 211 (1st Dep’t 2010) (“In the more than 25 years since Patrowich, the 15 Court of Appeals has not again had occasion to construe the definition of 16 ‘employer’ under the Human Rights Law.”). 24 1 When determining whether an individual falls under the “control” prong, 2 courts have frequently applied the so called “economic realities” test, balancing 3 “whether the alleged employer (1) had the power to hire and fire employees, (2) 4 supervised and controlled employee work schedules or conditions of 5 employment, (3) determined the rate and method of payment, and (4) 6 maintained employment records.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 7 139 (2d Cir. 1999). Individuals may be held liable if they “actually participate[] in 8 the conduct giving rise to a discrimination claim[.]” Tomka, 66 F.3d at 1317. 9 The district court assumed that “[w]hen a plaintiff seeks to sue an 10 additional defendant, other than a direct employer, and that additional 11 defendant is a business, courts have also applied the four economic realities 12 factors to determine whether the two companies are ‘joint employers.’” Griffin, 13 2014 WL 2434196, at *13. To support this proposition, the district court relied on 14 Voltaire v. Home Servs. Sys., Inc., 823 F. Supp. 2d 77, 96 (E.D.N.Y. 2011). But 15 Voltaire assumed the application of the economic realities factors because “both 16 parties’ submissions state[d] that these factors [were] applicable to both NYSHRL 25 1 and NYCHRL cases.” Id. at 97. Further, the district court here makes no 2 distinction between the “joint employer” doctrine and the “single employer” 3 doctrine, both of which have been utilized by courts in this circuit in 4 discrimination cases brought against a business that is not the plaintiff’s “direct 5 employer.” 6 The joint employer doctrine, along with the “single employer” (or “single 7 integrated employer”) doctrines “have been developed to allow a plaintiff to 8 assert employer liability in the employment discrimination context against 9 entities that are not her formal, direct employer.” Barbosa v. Continuum Health 10 Partners, Inc., 716 F. Supp. 2d 210, 216 (S.D.N.Y. 2010); see also Arculeo v. On Site 11 Sales & Marketing, LLC, 425 F.3d 193, 197 (2d Cir. 2005). “A ‘single employer’ 12 situation exists ‘where two nominally separate entities are actually part of a 13 single integrated enterprise . . . .’” Clinton s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 14 137 (2d Cir. 1985) (quoting NLRB v. Browning Ferris Indus. of Pa., Inc., 691 F.2d 15 1117, 1122 (3d Cir. 1982)). In contrast, a “joint employer” relationship involves 26 1 separate legal entities that “handle certain aspects of their employer employee 2 relationship jointly.” Id. 3 “The single employer doctrine provides that, ‘in appropriate 4 circumstances, an employee, who is technically employed on the books of one 5 entity, which is deemed to be part of a larger single employer entity, may impose 6 liability for certain violations of employment law not only on the nominal 7 employer but also on another entity comprising part of the single integrated 8 employer.” Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 681 (S.D.N.Y. 2009) 9 (quoting Arculeo, 425 F.3d at 198). 10 To determine whether two separate entities should be considered a single 11 employer for the purposes of employment discrimination claims, courts have 12 relied on four considerations: (1) interrelation of operations; (2) centralized 13 control of labor relations; (3) common management; and (4) common ownership 14 or financial control. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d 15 Cir. 1995). “Although no one factor is determinative . . . control of labor relations 16 is the central concern.” Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996). 27 1 “The joint employer doctrine applies where there is no single integrated 2 enterprise, but where two employers ‘handle certain aspects of their employer 3 employee relationship jointly.’” Fowler, 677 F. Supp. 2d at 681 (quoting Arculeo, 4 425 F.3d at 198). For example, “[a]n employee formally employed by one entity 5 can be found to be constructively employed by another entity, and thus may 6 impose liability for violations of employment law on the constructive employer.” 7 Id.; see also NLRB v. Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994) (“A joint 8 employer relationship may be found to exist where there is sufficient evidence 9 that the respondent had immediate control over the other company’s 10 employees.”). The doctrine is drawn in part from express language in the Family 11 and Medical Leave Act (“FMLA”), which provides that separate and distinct 12 entities with separate owners may be “joint employers under the FMLA if they 13 ‘jointly exercise some control over the work or working conditions of the 14 employee.’” Voltaire, 823 F. Supp. 2d at 96 (quoting 29 C.F.R. § 825.106(a)). 15 16 The district court made no apparent attempt to distinguish analytically the “joint employer” doctrine from the “single employer” doctrine. Both have been 28 1 applied by courts in this circuit when considering discrimination claims against 2 businesses that are not the plaintiff’s “direct employer.” But whether one or the 3 other (or both) applies to the NYSHRL, especially Section 296(15), remains 4 unresolved. iii. The Applicability of the “Aiding and Abetting” Provision 5 6 Finally, we do not believe New York case law is settled on whether the 7 “aiding and abetting” provision of the NYSHRL, § 296(6), is applicable to the 8 facts of this case. The district court determined that the “joint employer” doctrine 9 also applies when a plaintiff is seeking “aiding and abetting” liability of “an 10 additional defendant, other than a direct employer, and that additional 11 defendant is a business.” Griffin, 2014 WL 2434196, at *12. We cannot say this is 12 obviously the case. The provision that gives rise to aiding and abetting liability 13 provides that it is “an unlawful discriminatory practice for any person to aid, 14 abet, incite, compel or coerce the doing of any of the acts forbidden . . . or to 15 attempt to do so.” N.Y. Exec. Law § 296(6). At least where the alleged aider and 16 abettor is an individual employee of the corporate employer, we have held that 29 1 this provision requires that the alleged aider and abettor “’actually participated 2 in the conduct giving rise to the claim of discrimination,’ and that the ‘aider and 3 abettor share the intent or purpose of the principal actor.’” Idlisan v. N.Y.S. Dep’t 4 of Taxation & Fin., No. 12-CV-1787 MAD/CFH, 2013 WL 2898050, at *4 5 (N.D.N.Y. 5 June 13, 2013) (quoting Robles v. Goddard Riverside Cmty. Ctr., No. 08 CV 4856, 6 2009 WL 1704627, at *3 (S.D.N.Y. June 17, 2009)); see also Tomka, 66 F.3d at 1317 7 (“A defendant who actually participates in the conduct giving rise to a 8 discrimination claim may be held personally liable under the [NYS]HRL.”). 9 Again, we see reason to think that New York might construe this provision 10 differently when the liability of a corporation that contracts with the employing 11 corporate defendant is at issue: different considerations may be relevant. Further, 12 even if the standards are similar or the same for the individual co employee and 13 the contracting corporate defendant, we think it would be an odd result to hold 14 that a defendant business that “actually participate[d] in the conduct giving rise 15 to a discrimination claim,” may be liable only if it is the defendant’s “direct 16 employer” or if it also satisfies the “joint employer” doctrine. The district court 30 1 fails to explain why such a result is dictated by the text of the NYSHRL or 2 existing New York State case law. As with respect to the prior two questions, the 3 law is unsettled on the applicability of Section 296(6) to Section 296(15). 4 CONCLUSION Before we certify a question to the Court of Appeals, “we must answer 5 6 three others: (1) whether the New York Court of Appeals has addressed the issue 7 and, if not, whether the decisions of other New York courts permit us to predict 8 how the Court of Appeals would resolve it; (2) whether the question is of 9 importance to the state and may require value judgments and public policy 10 choices; and (3) whether the certified question is determinative of a claim before 11 us.” Osterweil v. Bartlett, 706 F.3d 139, 142 (2d Cir. 2013) (internal quotation marks 12 omitted), certified question accepted, 20 N.Y.3d 1058 (2013), and certified question 13 answered, 21 N.Y.3d 580 (2013). In this case, the answer to each suggests that 14 certification is appropriate. First, as discussed above, New York courts have not 15 determined who may be liable under § 296(15), or addressed the scope § 296(6) 16 when the alleged aider and abettor is not an individual. Second, the prohibition 31 1 against discrimination on the basis of prior criminal convictions reflects the New 2 York Legislature’s important policy goal of promoting “successful and 3 productive reintegration into society.” See Acosta, 16 N.Y.3d at 314 (internal 4 quotation marks omitted). The question of who may be held liable for violating 5 that prohibition will have a substantial effect on how that goal is realized. 6 Finally, the outcome of this appeal will depend on the answers to the certified 7 questions. If § 296(15) applies only to “direct “employers, and § 296(6) does not 8 permit aiding and abetting liability in these circumstances, Griffin and Godwin’s 9 claims against Allied and Sirva fail as a matter of law. On the other hand, if 10 Griffin and Godwin can assert their claims against Allied and Sirva, the district 11 court’s order must be vacated and their cases allowed to proceed. 12 Accordingly, and pursuant to New York Court of Appeals Rule 500.27 and 13 Local Rule 27.2 of this Court, we certify the following three questions to the New 14 York Court of Appeals: 15 16 17 18 (1) Does Section 296(15) of the New York State Human Rights Law, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party’s “employer”? 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (2) If Section 295(15) is limited to an aggrieved party’s “employer,” what is the scope of the term “employer” for these purposes, i.e. does it include an employer who is not the aggrieved party’s “direct employer,” but who, through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party’s “direct employer”? (3) Does Section 296(6) of the New York State Human Rights Law, providing for aiding and abetting liability, apply to § 296(15) such that an out of state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of § 296(15)? In certifying these questions, we do not bind the Court of Appeals to the 15 particular questions stated. Rather, the Court of Appeals may expand these 16 certified inquiries to address any further question of New York law as might be 17 relevant to the particular circumstances presented in this appeal. This panel will 18 resume its consideration of this appeal after the disposition of this certification 19 by the New York Court of Appeals. 20 It is hereby ORDERED that the Clerk of Court transmit to the Clerk of the 21 New York Court of Appeals this opinion as our certificate, together with a 22 complete set of the briefs, the appendix, and the record filed in this Court by the 33 1 parties. The parties shall bear equally any fees and costs that may be imposed by 2 the New York Court of Appeals in connection with this certification. 34