Trathony Griffin and Michael Godwin, Appellants,v.Sirva, Inc. and Allied Van Lines, Inc., Respondents.BriefN.Y.March 28, 2017To be Argued by: GEORGE W. WRIGHT (Time Requested: 30 Minutes) CTQ-2016-00002 Court of Appeals of the State of New York TRATHONY GRIFFIN and MICHAEL GODWIN, Appellants, - against - SIRVA, INC. and ALLIED VAN LINES, INC., Respondents. ------------------------------ ON APPEAL FROM THE CERTIFIED QUESTIONS BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-1307-CV BRIEF FOR RESPONDENTS Of Counsel: GEORGE W. WRIGHT NARINDER S. PARMAR GEORGE W. WRIGHT & ASSOCIATES, LLC Attorneys for Respondents 88 Pine Street, 7th Floor New York, New York 10005 Tel.: (201) 342-8884 Fax: (201) 343-8869 Date Completed: February 3, 2017 CORPORATE DISCLOSURE STATEMENT Pursuant to § 500.1 of the Rules of the Court of Appeals, Respondents, SIRV A, INC. (''SIRV A") and ALLIED VAN LINES, INC. ("ALLIED") advise the Court that SIR VA is the holding company of Sirva Worldwide, Inc., which is the parent company ofNorth American Van Lines, Inc., which is the parent company of ALLIED. Dated: New York, New York February 6, 2017 GEORGE W. WRIGHT & ASSOCIATES, LLC Attorneys for Defendants-Appellees Wall Street Plaza 88 Pine Street, 7th Floor New York, NY 10005 (20 1) 342-8884 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT……………………… i TABLE OF AUTHORITIES……………………………................... iv STATEMENT OF CASE …………………………………………… 1 POINT I: HRL SECTION 296(15) LIMITS LIABILITY TO AN “EMPLOYER”............................. 13 A. Statutory Construction Principles………………………….. 13 B. The HRL’s Legislative Intent………………………………. 14 C. The Plain Language of the Correction Law and HRL……………………………………………… 17 POINT II: THE SCOPE OF THE TERM “EMPLOYER”………… 26 A. The HRL’s Legislative History Reflects That the Term “Employer” Should be Strictly Construed According to its “Accepted and Dictionary Definition”…………………………………. 26 B. The HRL’s Limited Use of the Term “Employer” Was Consistent With Its Prior Interpretation By New York Courts………………………… 31 C. New York Courts Still Use the Common Law Control Test to Determine Whether An Employment Relationship Exists……………………….. 33 ii D. New York Courts Apply the Control Test To Determine Single Employer or Joint Employer Status…………………………………………… 35 E. New York Courts Apply the “Control” or “Economic Reality” Test to Determine Whether an Employment Relationship Exists Under the HRL……………………….. 37 F. Federal Employer Doctrines………………………………. 40 POINT III: NO EXPANSION OF HRL SECTION 296(6) AIDING AND ABETTING LIABILITY IS WARRANTED BY THIS CASE………………….. 59 A. SIRVA and ALLIED Cannot be Liable to Plaintiffs For Aiding and Abetting ASTRO’s Lawful Conduct………………………………………….. 60 B. Expanding HRL Sec. 296(6) Liability is Not Supported by New York Law, Public Policy or the Facts of This Case………………………….. 64 CONCLUSION……………………………………………………… 67 CERTIFICATE OF COMPLIANCE……………………………… 69 iii TABLE OF AUTHORITIES Page CASES Acosta v. New York City Dept. of Educ., 16 N.Y.3d 309, 921 N.Y.S.2d 633 (2011)…………………………………….. 16, 23 Airborne Freight Co., 338 NLRB 597 (2002)………………... 57 Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193 (2005)………………………………………………………… 48, 49, 53 Bartle v. Mercado, 235 A.D.2d 651, 652 N.Y.S.2d 139 (3d Dept. 1997)………………………………………………. 37 Boire v. Greyhound Corp., 376 U.S. 473, 84 S. Ct. 894, 11 L. Ed. 2d 849 (1964)………………………………………. 53,56 Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 528 N.Y.S.2d 519 (1998)…………………………………………………….. 22 Bradford v. Air La Carte, Inc., 79 A.D.2d 553, 434 N.Y.S.2d 17 (1st Dept. 1980)………………………………... 35 Brooks v. Chemical Leaman Tank Lines, Inc., 71 A.D.2d 405, 422 N.Y.S.2d 695 (1st Dept. 1979)……………………. 35, 36 Brown v. Daikin Am., Inc., 756 F.3d 219 (2d Cir. 2014)…… 49 Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015)……………………………………….. 57 iv Carter v. Dutchess Community Coll., 735 F.2d 8 (2d Cir. 1984)………………………………………………… 39 Cardinale v. S. Homes of Polk Cnty, Inc., 310 F. App'x 311 (11th Cir. 2009)………………………………………….. 43-44 Cavallaro v. UMass Mem. Health Care, Inc., 971 F.Supp.2d 139 (D. Mass. 2013)………………………………. 44 Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994)…………… 63 Chemtex, LLC v. St. Anthony Enters., Inc., 490 F.Supp.2d 536 (S.D.N.Y. 2007)………………………………. 62 Christianson v. Breen, 288 N.Y. 435, 43 N.E.2d 478 (1942)…………………………………………………………. 32 Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003)………… 42, 45 Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132 (2d Cir. 1985)…………………………………………………. 55 Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989)……………… 45 Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995)…………………………………………………. 44, 48, 49-50 Cornell v. CF Ctr., LLC, 410 Fed. Appx. 265 (11th Cir. 2011)………………………………………………………….. 45 Dennison v. Peckham Road Corp., 295 N.Y. 457, 68 N.E.2d 440 (1946)……………………………………………. 35 v De Noyer v. Cavanaugh, 221 N.Y. 273, 116 N.E. 992 (1917)………………………………………………………… 35 Dinah v. Salzman Electric Co., Inc. 2005 N.Y. Misc. Lexis 3591 (N.Y. Sup.Ct. 2005)……………………………… 59 Dinetz v. Brand Jewelers, 34 A.D.2d 720, 309 N.Y.S.2d 771 (3d Dept. 1970)…………………………………………... 35 Doboshinski v. Fuji Bank, Ltd., 78 A.D.2d 537, 432 N.Y.S.2d 99 (2d Dept. 1980)………………………………… 35, 36 Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111 (2d Cir. 2000)……………………………………… 47 Engel v. Calgon Corp., 114 A.D.2d 108, 498 N.Y.S.2d 877 (3d Dept. 1986)…………………………………………. 27 Falk v. Brennan, 414 U.S. 190, 94 S. Ct. 427, 38 L.Ed.2d 406 (1973)…………………………………………………… 40 Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57 (1986)………………………………………….. 13 Ferro v. Leopold Sinsheimer Estate, Inc., 256 N.Y. 398, 176 N.E. 817 (1931)…………………………………………. 31 Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 786 N.Y.S.2d 382 (2004)………………………………………… 51, 60 Grant v. Frontier Oil Refining Co., 20 A.D.2d 493, 247 N.Y.S.2d 731(3d Dept. 1964)……………………………….. 35 Griffin v. DCJ Catering Corp., 23 Misc. 3d 1116(A) (N.Y. Sup. Ct. 2009)………………………………………… 37 vi Gulino v. N.Y. State Educ. Dept., 460 F.3d 361 (2d Cir. 2006)……………………………………………….. 41-43, 47, 49 Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983)……… 62-63, 64 In the Matter of the Board of Higher Education v. Carter, 14 N.Y.2d 138, 250 N.Y.S.2d 33 (1964)…………… 27, 29 In re Charles A. Field Delivery Serv., 66 N.Y.2d 516, 488 N.E.2d 1223, 498 N.Y.S.2d 111 (1985)…………… 33-34 In re Electrolux Corp., 288 N.Y. 440, 43 N.E.2d 480 (1942)……………………………………………………. 31 In re Floyd Epperson, 202 NLRB 23 (1973), enf’d, 491 F.2d 1390 (6th Cir. 1974)……………………………….. 56 In re Morton, 284 N.Y. 167, 173, 30 N.E.2d 369 (1940)………………………………………………………... 32 In re Ted Is Back Corp., 64 N.Y.2d 725, 75 N.E.2d 113, 485 N.Y.S.2d 742 (1984)………………………………. 34 International Chemical Workers Union Local 483 v. NLRB, 561 F.2d 253 (D.C.Cir.1977)…………………….. 56 International House v. NLRB, 676 F.2d 906 (2d Cir. 1982)………………………………………………………… 54 Jacobson v. Comcast Corp., 740 F. Supp. 2d 683 (D.Md. 2010)……………………………………………….. 58 Janikowski v. Yardley's of London, Inc., 11 A.D.2d 577, 201 N.Y.S.2d 157 (3d Dept. 1960)……………………. 35 vii Kackel v. Serviss, 180 A.D. 54, 167 N.Y.S. 348 (3d Dept. 1917)……………………………………………… 31 Kaufman v. Cohen, 307 A.D.2d 113 (1st Dept. 2003)…….... 62 Kelly G. v. Board of Education of City of Yonkers, 99 A.D. 3d 756, 952 N.Y.S.2d 229 (2d Dept. 2012)………… 61 King v. George Schonberg & Co., 233 A.D.2d 242, 650 N.Y.S.2d 107 (1996)……………………………………. 62 Laerco Transp., 269 NLRB 324 (1984)……………………… 57 Lambert v. Macy's E., Inc., 34 Misc. 3d 1228(A), 951 N.Y.S.2d 86 (Sup. Ct. 2010)…………………………….. 51 Lawrence v. Adderley Indus., 2011 U.S. Dist. LEXIS 14386 (E.D.N.Y. 2011)………………………………………. 58 Levine v. Reader's Digest Ass'n, 347 Fed. Appx. 602 (2d Cir. 2009)………………………………………………… 49 Liberman v. Gallman, 41 N.Y.2d 774, 364 N.E.2d 823, 396 N.Y.S.2d 115 (1977)…………………………………….. 34 Litts v. Risley Lumber Co., 224 N.Y. 321, 120 N.E. 730 (1918)……………………………………………………. 32 Matter of Argyle Realty Assocs. v. New York State Div. of Human Rights, 65 A.D.3d 273, 2009 WL 1885925 (2d Dept. 2009)…………………………………….. 52 Matter of Empire State Towing & Recovery Assn., Inc. v. Commissioner of Labor, 15 N.Y.3d 433, 938 N.E.2d 934, 912 N.Y.S.2d 551 (2010)…………………... 33 viii McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930 (11th Cir. 1987)…………………………………….. 44 Miles v. Univ. of the Dist. of Columbia, 2013 U.S. Dist. LEXIS 155236 (D.D.C. 2013)……………………………….. 43, 52 Murphy v. ERA United Realty, 251 A.D.2d 469, 674 N.Y.S.2d 415 (2nd Dept. 1998)………………………….. 37 Nassau Educational Chapter of Civil Service Employees Asso. v. Great Neck Union Free School Dist., 57 N.Y.2d 658, 439 N.E.2d 876, 454 N.Y.S.2d 67 (1982)………………. 34 National Westminster Bank USA v. Weksel, 124 A.D.2d 144, 511 N.Y.S.2d 626 (1st Dept. 1987), lv. denied 70 N.Y.2d 604 (1987)………………………………………… 62 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992)………………………... 39-40, 41, 46, 47, 48 NLRB v. Amax Coal Co., 453 U.S. 322, 101 S. Ct. 2789, 69 L. Ed. 2d 672 (1981)………………………………………. 45 NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117 (3d Cir. 1982)…………………………… 55-56, 57 NLRB v. Hearst Publications, Inc., 322 U.S. at 120-129……. 46 NLRB v. Jewell Smokeless Coal Corp., 435 F.2d 1270 (4th Cir. 1970)……………………………………………….. 55 O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997)……………. 47-48 164th Bronx Parking, LLC v. City of New York, 20 Misc.3d 796, 862 N.Y.S.2d 248 (N.Y. Sup. Ct. 2008)………. 14, 24 ix Parham v. Southwestern Bell Telephone, 433 F.2d 421 (8th Cir. 1970)……………………………………………….. 48 Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000)………………………………………………… 50 Patrowich v. Chemical Bank, 63 N.Y.2d 541 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984)………………………… 38-39, 40 Pearson v. Component Tech. Corp., 247 F.3d 471 (3d Cir. 2001)………………………………………………… 44 Peluso v. Smith, 142 Misc. 2d 642, 540 N.Y.S.2d 631 (N.Y. Sup. Ct. 1989)…………………………………………. 16 People v. Ryan, 274 N.Y. 149, 8 N.E.2d 313 (1937)………… 13, 21 People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1 (2003)…………………………………………………………. 14 Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468 (2d Cir. 1999)………………………. 47 Poppenberg v. Reliable Maintenance Corp., 89 A.D.2d 791, 453 N.Y.S.2d 519 (4th Dept. 1982)…………….. 35, 36 Pulitzer Publishing Co. v. NLRB, 618 F.2d 1275 (8th Cir.), cert. denied, 449 U.S. 875, 101 S. Ct. 217, 66 L. Ed. 2d 96 (1980)……………………………………….. 56 Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 85 S. Ct. 876, 13 L. Ed. 2d 789 (1965)………………………. 43, 44 Ref-Chem Company v. NLRB, 418 F.2d 127 (5th Cir. 1969)…………………………………………………………. 56 x Rossman v. Imperial Fashions, Inc., 32 A.D.2d 1023, 301 N.Y.S.2d 751 (3d Dept. 1969)…………………………… 35, 36 St. Jean v. Orient-Express Hotels Inc., 963 F. Supp. 2d 301 (S.D.N.Y. 2013)…………………………………………. 54 Sanchez v. Brown, Harris, Stevens, Inc., 234 A.D.2d 170, 651 N.Y.S.2d 477 (1st Dept. 1996)……………………… 38 Shiflett v. Scores Holding Co., 601 Fed. Appx. 28 (2d Cir. 2015)…………………………………………………. 54 Spirt v. Teachers Ins. and Annuity Ass'n, 691 F.2d 1054 (2d Cir. 1982), vacated and remanded on other grounds, 463 U.S. 1223, 103 S. Ct. 3565, 77 L. Ed. 2d 1406 (1983)…………………………………………………… 40-41, 42 State Div. of Human Rights v. Board of Coop. Educ. Services, 98 A.D.2d 958, 470 N.YS.2d 209 (4th Dept. 1983)………………………………………………………….. 28 State Division of Human Rights v. GTE Corp., 109 A.D.2d 1082, 487 N.Y.S.2d 234 (4th Dept. 1985)…………… 38, 40 Strauss v. New York State Department of Education, 26 A.D. 3d 67, 805 N.Y.S.2d 704 (3d Dept. 2005)………….. 51, 61 Stringer v. Musacchia, 11 N.Y.3d 212, 898 N.E. 2d 545, 869 N.Y.S.2d 362 (2008)………………………………. 33 Sukhu v. United Parcel Serv., Inc., 2016 N.Y. Misc. Lexis 888, 2016 NY Slip Op 30454(U) (N.Y. Sup. Ct. 2016)…………………………………………. 37 Sun-Maid Growers v. NLRB, 618 F.2d 56 (9th Cir. 1980)…………………………………………………………. 56 xi Sweeney v. Board of Education, 112 A.D.2d 240, 491 N.Y.S.2d 455 (2d Dept. 1985)…………………………… 30 TLI, Inc., 271 NLRB 798 (1984)……………………………... 57 Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983)………………………………………………………….. 50 Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014)…………………………………………………. 49 United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947)…………………………………………. 46 York v. Ass'n of the Bar, 286 F.3d 122 (2d Cir. 2002)……….. 47 Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003)………………………………………………………….. 55 FEDERAL STATUTES 49 U.S.C. §13907…………………………………………….. 1 49 U.S.C. § 14501(c)(1)………………………………………. 5 Fair Labor Standards Act (FLSA)……………………………… 39, 40, 41, 44 Title VII……………………………………………………….. 11, 41, 42, 43, 47, 48, 50, 51, 52, 54, 58 STATE STATUTES N.Y. Corr. Law Secs. 168-l(6)(b) and (c)…………………….. 3, 7, 67 xii N.Y. Corr. Law Secs. 703-a through 755……………………. 17 N.Y. Corr. Law (Secs. 750-755) (Article 23-A)………………………………………………… 10, 17, 21, 22, 23, 24, 25, 51, 67 N.Y. Corr. Law Sec. 750……………………………………. 17-18 N.Y. Corr. Law Sec. 750(1)………………………………… 21, 24 N.Y. Corr. Law Sec. 750(2)………………………………… 21, 24, 26 N.Y. Corr. Law Sec. 751…………………………………… 18, 23, 24 N.Y. Corr. Law Sec. 752…………………………………… 15, 16, 18- 19, 23 N.Y. Corr. Law Sec. 752(1)………………………………… 9, 10 N.Y. Corr. Law Sec. 753……………………………………. 8, 19-20, 22, 23, 25 N.Y. Corr. Law Sec. 753(1)………………………………… 4, 15, 16, 23, 24 N.Y. Corr. Law Sec. 755……………………………………. 20 N.Y. Corr. Law Sec. 755(2)…………………………………. 23 N.Y. Exec. Law Sec. 291……………………………………... 14, 51, 67 N.Y. Exec. Law Sec. 292(5)…………………………………... 26, 30 N.Y. Exec. Law Sec. 292(6)…………………………………... 28 xiii N.Y. Exec. Law Sec. 296…..………………………………… 10, 21, 30 N.Y. Exec. Law Sec. 296(1)………………………………… 31, 37 N.Y. Exec. Law Sec. 296(5)………………………………… 40 N.Y. Exec. Law Sec. 296(6)………………………………… 5, 25, 59, 60, 61, 64, 65 N.Y. Exec. Law Sec. 296(15)………………………………… 1, 5, 8, 9, 11, 13, 15, 17, 21, 23, 24, 25, 26, 42, 51, 60, 61, 64, 65, 67 N.Y. Exec. Law (L. 2014, ch. 97, § 1, eff. July 22, 2014)…… 30 N.Y. Exec. Law, art. 15, Sec. 127 [1945]…………………….. 28 Laws of 1944, Ch. 692……………………………………….. 26 Laws of 1975, Ch. 803……………………………………….. 29 Laws of 1976, Ch. 931……………………………………….. 17 Laws of 1996, Ch. 204……………………………………….. 29 Laws of 2002, Ch. 2…………………………………………. 29 Laws of 2003, Ch. 106……………………………………….. 29 Laws of 2005, Ch. 75………………………………………… 29 Laws of 2009, Ch. 80………………………………………… 29 xiv Laws of 2010, Ch. 196. ……………………………………… 29 Laws of 2014, Ch. 97………………………………………… 30 LEGISLATIVE HISTORY New York State Assembly, Memorandum in Support of Legislation, Bill A08201………………………… 30 N. Y. Legis. Doc., 1945, No. 6……………………………… 27 MISCELLANEOUS Restatement (Second) of Torts § 876 (1979)……………….. 62 Lichtash, Terry, “Ives-Quinn Act-The Law Against Discrimination,” St. John’s Law Review: Vol. 19, Iss. 2, April, 1945, Article 18, pp. 171-172………………………… 29 xv 1 STATEMENT OF CASE The Complaint (A-12) filed by Appellants TRATHONY GRIFFIN (“GRIFFIN”) and MICHAEL GODWIN (“GODWIN”) alleges a single count against Respondents SIRVA, INC. (“SIRVA”) and ALLIED VAN LINES, INC. (“ALLIED”) under New York Executive Law1 Sec. 296 (15) for alleged employment discrimination based on Appellants’ felony criminal convictions for sexual assaults against 7-year-old children. The procedural history and the facts supporting the District Court’s summary judgment Order (A-336 to A-360) in favor of SIRVA and ALLIED are set forth in their Second Circuit Brief (A-500 to A-509). The following facts are undisputed. SIRVA is an indirect holding company of ALLIED which is a USDOT-authorized interstate motor carrier of household goods and high value commodities (A-337). ALLIED’s interstate moving services are provided to the general public through ALLIED’s national network of limited statutory2 household goods agents located throughout the United States (A- 1 Generally referred to as the New York State Human Rights Law (“HRL”). 2 ALLIED’s limited agency relationship with its interstate household goods agents is governed by 49 U.S.C. §13907. 2 337). ASTRO MOVING AND STORAGE CO., INC. (“ASTRO”) is one of ALLIED’s limited household goods agents in New York (A-338). Neither SIRVA nor ALLIED had an employment contract or relationship with GRIFFIN or GODWIN (A-337, A-339). Under the Agency Contract between ALLIED and ASTRO, ASTRO’s employees are not employees of ALLIED. ALLIED has no control over the selection, hiring, compensation, benefits, work schedules, job assignments, supervision, discipline or termination of ASTRO’s employees (A-339). While they were employed by ASTRO, GRIFFIN and GODWIN had no contact or communication with SIRVA or ALLIED, nor did Appellants ever receive training or compensation from SIRVA or ALLIED (A-106, ¶90). Neither SIRVA nor ALLIED instructed ASTRO to terminate Appellants and Respondents had no prior knowledge of, or communication with, ASTRO about Appellants’ terminations before they occurred (A-106, ¶¶94-95). ASTRO’s alleged termination of Appellants was beyond the scope of its Agency Contract with ALLIED. Appellants produced no evidence in opposition to SIRVA’s and ALLIED’s summary judgment motion or at trial suggesting that either Respondent engaged in any conduct, apart from ASTRO’s conduct, that 3 directly caused Appellants’ alleged terminations. Appellants do not appeal from that part of the District Court’s summary judgment finding that SIRVA and ALLIED were not their employers. According to Appellants, Respondents are liable to them even though Respondents did not participate in their alleged terminations by ASTRO and the jury determined Appellants were not unlawfully terminated by ASTRO. GRIFFIN and GODWIN are, respectively, designated as Level 3 and Level 2 “Sexually Violent Offenders” pursuant to Correction Law Sec. 168-l(6)(b) and (c) and remain under the supervision of the New York State Division of Parole (A-340). GRIFFIN and GODWIN are prohibited from having any contact with children under eighteen (18) years of age unless accompanied by another adult (A-340). GRIFFIN admitted at trial he is a Level 3 sex offender who is ineligible for a certificate of rehabilitation (A- 563). ALLIED requires its limited statutory household goods agents to provide interstate moving services in customers’ homes and businesses in close proximity to customers and their families or employees (A-341). In ALLIED’s sound business judgment, allowing its agents to send violent sex 4 offenders into customers’ homes would create unreasonable risks of harm to the public and ALLIED’s reputation and goodwill (A-341). In 2006, ALLIED established a “Certified Labor Program” (“CLP”) requiring its limited statutory household goods agents to screen their contractors and employees for significant felony criminal histories that disqualify them from participating in ALLIED’s interstate moving jobs (A- 341). In developing its interstate CLP standards, ALLIED considered the same factors, except age, set forth in Correction Law Sec. 753(1) (A-280, ¶56). ALLIED’s CLP rules are designed to ensure that the quality of its interstate transportation services is consistent with the high safety standards demanded by the public (A-108, ¶108). ALLIED’s limited statutory household goods agents, including ASTRO, are free to hire anyone, regardless of criminal background, for the agents’ own local, intrastate moving services under their own New York State Department of Transportation public mover licenses (A-343). ALLIED’s CLP standards barred Appellants from working on its interstate jobs performed by ASTRO, but did not require ASTRO to terminate them or prohibit ASTRO from employing them in its local moving business. 5 The District Court’s Memorandum and Order (A-336 to A-360) granted summary judgment dismissing the Complaint against SIRVA and ALLIED on the following grounds: (1) Only an “employer” may be held liable under HRL Sec. 296(15) (A-355); (2) To be an "employer" under Sec. 296 requires a showing that the person has (A) an ownership interest in the employer or (B) meets the "economic realities" test that balances "whether the alleged employer (1) had the power to hire and fire employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records (A- 356); (3) Under the “economic realities” test, ALLIED and SIRVA were not Appellants’ employers (A-358-359); and (4) ALLIED and SIRVA are not liable under HRL Sec. 296(6) for aiding and abetting ASTRO’s conduct because they were not involved in terminating Appellants’ employment (A-359- 360).3 3 The District Court did not address Respondents’ argument that Appellants’ HRL claim is preempted by the ICC Termination Act of 1995 (“ICCTA”), Section 14501(c)(1), known as ICCTA’s “FAAAA” preemption provision (A- 354). 6 Appellants tried their claims against their employer ASTRO for criminal conviction employment discrimination, race discrimination and unpaid overtime wages before a jury. The jury found Appellants failed to prove ASTRO unlawfully terminated them because of their criminal convictions (A-365; A-625). Thus, the jury determined that there was a direct relationship between GODWIN’s felony sexual assault conviction and his job duties. The jury further determined there was either a direct relationship between GRIFFIN’s same conviction and his job duties, or GRIFFIN voluntarily quit his job at ASTRO. GRIFFIN and GODWIN did not appeal from the jury’s dismissal of their conviction discrimination claim against ASTRO (A-366). Therefore, the jury’s verdict is res judicata that Appellants were neither unlawfully terminated by ASTRO nor terminated as a result of ASTRO’s compliance with any unlawful directive of SIRVA or ALLIED. Appellants now ask the Second Circuit to grant them a second trial of their criminal conviction discrimination claims against SIRVA and ALLIED when the jury rejected Appellants’ very same claim against their employer ASTRO. Contradicting their closing argument to the jury, Appellants now seek to “blame it all on 7 Allied” (A-603) after the jury rejected their discrimination claims against their employer ASTRO. The Second Circuit’s August 30, 2016 Opinion and Order (“Certification Order”) summarizes SIRVA’s and ALLIED’s contractual rules governing ASTRO’s assignment of employees and contractors to ALLIED’s interstate shipments. ASTRO’s use of labor for ALLIED’s interstate jobs is subject to ALLIED’s CLP rules, guidelines, background checks, audits and fines (A-660 to A-661). ALLIED’s contractual control over ASTRO’s handling of ALLIED’s interstate shipments does not amount to control over ASTRO’s employees. ALLIED’s CLP rules only apply to its own interstate shipments and do not apply to ASTRO’s separate local moving and storage business. ASTRO is free to utilize its employees in its own business any way it wants. The Certification Order omits the fact that Appellants’ victims were a seven 7-year-old boy and a seven 7-year-old girl (A-663). Appellants’ classification as “Violent Sexual Offenders” under New York Correction Law Sec. 168-1(6)(b) and (c) makes them exactly the kinds of dangerous felons that the Correction Law and HRL gives New York employers the discretion not to hire when they deem it necessary to protect public safety. 8 The Certification Order rejects Respondents’ argument that, because the jury dismissed Appellants’ claim against ASTRO for criminal conviction discrimination, they may not re-litigate their claim that SIRVA or ALLIED unlawfully discriminated against Appellants as a result of ASTRO’s lawful conduct (A-664 to A-665). The District Court held that HRL Sec. 296(15) applies only to employers because “only an employer can ‘deny…employment’” (A-355). According to the Certification Order, the District Court’s reasoning is questionable because the first sentence of HRL Sec. 296(15) does not expressly use the term “employer” while the second sentence refers to “employer” twice (A-672). The Certification Order reasons that HRL Sec. 296(15) might be construed to include a third-party non-employer “person, agency, bureau, corporation or association, including the state and any political subdivision thereof….” Id. The Certification Order states that the Court is not convinced by Respondents’ argument that because Correction Law Sec. 753, which is expressly incorporated by reference in HRL Sec. 296(15), applies only to a “public agency or private employer…,” only Appellant’s “private employer” ASTRO could be liable on their HRL claims. (A-672 to 673). 9 Citing lack of guidance from the New York Legislature as to whether “employer” should be broadly construed, the Certification Order suggests, even if HRL Sec. 296(15) applies only to an "employer," that term could be judicially expanded on policy grounds: There is also reason to believe that the definition of "employer" could be broader in the context of Section 296(15). For example, in most cases it is unlikely that a New York company would be bound by a contractual term to apply a policy that explicitly discriminates on the basis of race or sex. But in this case, the agency contract explicitly required Astro to discriminate on the basis of prior criminal convictions. Thus, Section 296(15) may be distinguishable from other provisions of the NYSHRL having to do with discrimination on the basis of race or sex, and may well require a broader definition of "employer" to effectuate its prohibition against discrimination (emphasis added) (A-670- 671). Respondents are puzzled by the Certification Order’s comment that the ALLIED’s Agency Contract “required ASTRO to discriminate” against persons with criminal convictions. The jury determined that ASTRO committed no discrimination against Appellants, whether or not ALLIED’s Agency Contract purportedly required it. Even if SIRVA or ALLIED was Appellants’ actual employer, Correction Law Sec. 752(1) and HRL Sec. 296(15) allow an employer to “discriminate” against a person with a criminal 10 conviction by denying employment if the employer determines (1) there is a direct relationship between the conviction and the job duties applied for or (2) the employment would pose an unreasonable risk to the welfare of individuals, the public or property. ALLIED’s CLP rules do not require ASTRO’s unlawful discrimination against Appellants because, as the jury found, Appellants’ crimes and their previous job duties in customers’ homes justified their alleged termination under the Sec. 752(1) criteria. The Certification Order does not explain why a broader definition of “employer” in Correction Law Article 23-A (Secs. 750-755) and HRL Sec. 296 may be needed to effectuate the law, particularly here where Respondents did not violate its letter or purpose. As discussed in Point I below, these statutes accord fewer employment rights to convicts than other protected classes. By design, the Legislature did not create a level playing field for Appellants. The Certification Order recites that the New York State Court of Appeals has not clearly defined the scope of the HRL term “employer” (A- 676). The Certification Order acknowledges that “New York courts have provided balancing tests to determine whether an entity is an ‘employer’” (A- 670), but refrains from applying New York’s balancing tests because the state 11 courts “have not applied those tests to Section 296(15).” Id. The Certification Order further states, “these factors have been taken into account by courts when addressing whether an individual is liable under other provisions of the NYSHRL” but not with respect to corporations (A-675). The Certification Order criticizes the District Court for not attempting to “distinguish analytically the ‘joint employer’ doctrine from the ‘single employer’ doctrine” (A-677-678). The “joint employer” doctrine has been applied in federal discrimination cases under Title VII and the Age Discrimination Act. The Certification Order suggests the federal “joint employer” test could be applied to Appellants’ Sec. 296(15) claim against SIRVA and ALLIED. The Certification Order acknowledges the HRL’s “aiding and abetting” provision requires a defendant to have "'actually participated in the conduct giving rise to the claim of discrimination,' and that the 'aider and abettor share the intent or purpose of the principal actor'" (A-682). The Certification Order, however, suggests that ALLIED’s mere contractual prohibition on its agents using convicted violent sex offenders on ALLIED’s interstate jobs could be “aiding and abetting” unlawful discrimination (A- 671). 12 The Certification Order states: [W]e think it would be an odd result to hold that a defendant business that "actually participate[d] in the conduct giving rise to a discrimination claim," may be liable only if it is the defendant's "direct employer" or if it also satisfies the "joint employer" doctrine (emphasis added) (A-682). It was undisputed by Appellants on SIRVA’s and ALLIED’s summary judgment motion and SIRVA and ALLIED had no direct involvement in or knowledge of their alleged termination by ASTRO. The jury subsequently determined ASTRO committed no unlawful discrimination against Appellants, either on its own volition or at Respondents’ behest. On the record established below, the Certification Order requests this Honorable Court to address whether SIRVA or ALLIED could be held liable to Appellants for aiding and abetting ASTRO’s alleged termination of them when Respondents had no knowledge of or involvement in that event and the jury found ASTRO committed no unlawful discrimination against Appellants. 13 POINT I HRL SECTION 296(15) LIMITS LIABILITY TO AN "EMPLOYER" Sound statutory construction principles and the HRL’s legislative history leave no doubt that the Legislature intended the statute to apply only to an “employer” within the common law meaning of that word. A. Statutory Construction Principles. In People v. Ryan, 274 N.Y. 149, 153, 8 N.E.2d 313 (1937) this Honorable Court set forth basic principles of statutory construction: In the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to "defeat the general purpose and manifest policy intended to be promoted;" all parts of the act must be read and construed together for the purpose of determining the legislative intent, and if the statute is ambiguous and two constructions can be given, the one must be adopted which will not cause objectionable results or cause inconvenience, hardship, injustice or mischief or lead to absurdity [citations omitted] [emphasis added]. In Ferres v. City of New Rochelle, 68 N.Y.2d 446, 452, 510 N.Y.S.2d 57 (1986) the Court held: In construing … [statutes] we must, of course, carefully examine the language of the statute and its 14 underlying purpose to determine its intended effect. But we may also look beyond the words of the statute, to the history surrounding its original enactment…We are mindful that in "the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle" (emphasis added). In People v. Stuart, 100 N.Y.2d 412, 419, 765 N.Y.S.2d 1 (2003) the Court held “it is axiomatic that a proscriptive law must provide people with reasonable notice of the conduct it prohibits.” See also, 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d 796, 801-802, 862 N.Y.S.2d 248 (N.Y. Sup. Ct. 2008) [the court must determine whether the statute is sufficiently definite “to give a person of ordinary intelligence fair notice that specific conduct is proscribed…”]. Nothing in the Correction Law or HRL suggests they were meant to impose liability on a party having only a contractual relationship with a New York employer, particularly where the contract bans the employer from assigning dangerous felons to jobs involving public safety as contemplated by the statutes. B. The HRL’s Legislative Intent. HRL Sec. 291 recites: Equality of opportunity a civil right. 15 1. The opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex, marital status, or disability, is hereby recognized as and declared to be a civil right. Conspicuously, the HRL does not give persons with criminal convictions a civil right to equal employment opportunity because doing so would make the statute self-contradictory. As discussed below, the HRL gives employers broad discretion in hiring convicts which is wholly incompatible with giving them a civil right to unrestricted employment opportunities. Under Correction Law Sec. 752 and HRL Sec. 296(15), it is not per se unlawful for a public or private employer to deny an application for a license or employment based on the applicant’s prior criminal offense. It is only unlawful for an employer to fail to consider or apply the eight (8) factors set forth in Correction Law Sec. 753(1) when making a determination whether (1) there is a direct relationship between the applicant’s criminal offense and employment sought or (2) the employment would pose an unreasonable risk to individual or public safety (A-668 to 669). As the Certification Order acknowledges, the employer’s "unreasonable risk" analysis under exception (2) is a subjective one (A-667). 16 Appellants conceded in the trial court that a defendant’s mere failure to take the Sec. 753(1) factors into account does not automatically result in liability (A-427). The fact-finder must decide on an objective basis whether the "direct relationship" or "unreasonable risk" criterion applies [“the question of whether proper consideration of the factors would in any event bar Griffin and Godwin from employment must go to the jury”]. Id. In Acosta v. New York City Dept. of Educ., 16 N.Y.3d 309, 315- 316, 921 N.Y.S.2d 633 (2011), this Court examined the legislative intent of HRL Sec. 296(15) and Correction Law Sec. 752: This general bar was enacted to further certain goals …namely, "the rehabilitation of those convicted" and "the promotion of their successful and productive reentry and reintegration into society" … "the key to reducing crime is a reduction in recidivism," and "[t]he great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual's return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination" (internal citations omitted) (emphasis added). In Peluso v. Smith, 142 Misc. 2d 642, 648, 540 N.Y.S.2d 631 (N.Y. Sup. Ct. 1989), the trial court commented: 17 The purpose of Correction Law article 23-A…was not to give ex-convicts preferred treatment; but to try to remove prejudice against former criminals obtaining jobs or licenses… [and] this law (Correction Law art 23-A) would encourage but "in no way requires the hiring of former offenders" (internal citations omitted) (emphasis added). Correction Law Article 23-A (Secs. 750-755) seeks to reduce this employment obstacle by requiring employers and public agencies to deal equitably with ex-offenders while protecting society's interest in assuring job performance by trustworthy persons. Id. C. The Plain Language of the Correction Law and HRL. Correction Law Secs. 703-a through 755 and HRL Sec. 296(15) were enacted together as part of the Laws of 1976, Ch. 931, entitled, “An Act to amend the correction law and the executive law, in relation to the removal of disabilities of criminal offenders and repealing certain provisions thereof relating thereto” (“Correction Law Amendment Act”). Correction Law Article 23-A provides, in pertinent part: Sec. 750. Definitions… (1) “Public agency” means … any state or local department, agency board or commission. 18 (2) “Private employer” means any person, company, corporation, labor organization or associations which employs ten or more persons. (3) “Direct relationship” means the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the … job. *** (5) “Employment” means any occupation, vocation or employment, or any form of vocational or educational training….” Sec. 751. Applicability. The provisions of this article shall apply to any application by any person for … employment at any public or private employer … and to … employment held by any person [convicted or a prior criminal offense] (emphasis added). Sec. 752. Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited. No application for any … employment, and no employment … held by an individual … shall be denied or acted upon adversely by reason of the individual’s having been previously convicted of one or more criminal offenses … unless: (1) There is a direct relationship between one or more of the previous criminal offenses and the specific … employment sought or held by the individual; or 19 (2) 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. Sec. 753. Factors to be considered concerning a previous criminal conviction; presumption. 1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:… (a) The public policy of this state … to encourage the … employment of persons previously convicted of one or more criminal offenses. (b) The specific duties and responsibilities necessarily related to the … employment sought or held by the person. (c) The bearing … 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. 20 (g) Any information … in regard to his rehabilitation and good conduct. (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. *** Sec. 755. Enforcement *** 2. In relation to actions by private employers, the provisions of this article shall be enforceable by the division of human rights pursuant to the powers and procedures set forth in article fifteen of the executive law… (emphasis added). Section 6 of the Correction Law Amendment Act amended HRL Sec. 296 “by adding thereto a new subdivision, to be subdivision fifteen, to read as follows:” It 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 (bold emphasis added). 21 Significantly, the above first sentence of HRL Sec. 296 declares a “discriminatory practice” to be unlawful only if it violates Correction Law Article 23-A. Article 23-A only relates to the conduct of public agencies and private employers as defined in Correction Law Secs. 750(1) and (2). Therefore, Article 23-A and Sec. 296(15) do not apply to any person or entity except a public or private employer. HRL Sec. 296(15) was later amended to add a second sentence: 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 (emphasis added). All parts of HRL Sec. 296(15) and Correction Law Secs. 750- 753 “must be read and construed together for the purpose of determining the legislative intent” because they were simultaneously enacted. People v. Ryan, 274 N.Y. at 153. Reading these provisions together, it is obvious that Correction Law Article 23-A only applies to an “employer” who is in a 22 position to grant, deny or act upon an employment application or existing employment. In other words, the law applies only to Appellants’ actual, direct employer, that is, ASTRO. The law does not apply to non-employers, like Respondents, who do not deny or adversely act upon a job application or employment held. More specifically, the law does not apply to non-employers whose contracts with actual employers may indirectly affect the latter’s employees job descriptions, but who do not directly control the employer’s hiring or termination of its employees. Nothing in the text or legislative history of these statutes suggests they are meant to impose liability on non-employers where their relationships or contracts with actual employers merely influence the latter’s employment decisions or job classifications. A restrictive interpretation of “employer” is supported by the Correction Law’s use of the term “private employer.” Correction Law Sec. 753 states: “In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors” (emphasis added). Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 611-613, 528 N.Y.S.2d 519 (1998) [“Article 23-A … [imposes] an obligation on employers and public agencies to deal equitably with ex- 23 offenders….”] [“the agency or employer must consider the factors mentioned in section 753 (1)”] [“though the public agency or private employer still retains discretion to deny the application”]; Acosta v. New York City Dept. of Educ., 16 N.Y.3d 309, 921 N.Y.S.2d 633 (2011) [“As a general matter, it is unlawful in this state for any public or private employer to deny any license or employment application ‘by reason of the individual's having been previously convicted of one or more criminal offenses”] (emphasis added). In the context of this case, Correction Law Sec. 751 only applies to ASTRO as Appellants’ “private employer.” Only their “private employer” ASTRO received their job “applications” and “acted upon” their employment within the meaning of Sec. 752. Only ASTRO was required by Correction Law Sec. 753 to consider the pertinent eight (8) factors. Correction Law Sec. 755 (2) states that violations “by private employers… shall be enforceable by the division of human rights pursuant to...article fifteen of the executive law.…” Correction Law Article 23-A only applies to ASTRO. Only ASTRO could incur liability under HRL Sec. 296(15) which incorporates and is subordinate to Correction Law Article 23-A. Non-employers were not intended by the Legislature to be treated as “employers” under Correction 24 Law Article 23-A and the HRL. To paraphrase, 164th Bronx Parking, supra, nothing in these statutes gives out-of-state non-employers like Respondents “fair notice” that they must consider the Sec. 753 factors if their contracts or relationships with their independent New York business partners may indirectly affect the partners’ employment of convicted persons. HRL Sec. 296(15)’s inclusion of the terms “person, agency, bureau, corporation, or association … state and any political subdivision” in its first sentence does not enlarge the class of potentially liable entities beyond direct public and private employers. Rather, Sec. 296(15)’s list of employers is consistent with the definitions of “public agency” or “private employer” in Correction Law Secs. 750(1) and (2), 751 and 753(1) when those provisions are properly read together. The repeated use of the term “employer” in the second part of HRL Sec. 296(15) leaves no doubt that its provisions only apply to actual employers and do not encompass their independent, unaffiliated business partners. The second part of Sec. 296(15) establishes a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person in a case alleging the employer’s negligent hiring, retention or supervision of an applicant, employee or hiring manager if the 25 employer complies with Correction Law Sec. 753. It makes no sense to protect non-employer third parties like Respondents from negligent hiring liability for the conduct of convicted persons they do not actually hire. It only makes sense to apply Sec. 296(15)’s presumption to an actual employer who hires a high-risk employee with a criminal conviction. The Legislature refers to “employers” twice in HRL Sec. 296(15) and seven (7) times in Correction Law Article 23-A (Secs. 750-755) which is incorporated by reference in HRL Sec. 296(15). The District Court correctly applied common sense to construe these statutes as applying exclusively to ASTRO, the only “private employer” that could grant or deny employment to Appellants after considering the Correction Law Sec. 753 factors. Neither SIRVA nor ALLIED can be considered Appellants’ “private employer” by any stretch. The New York Legislature did not intend to apply HRL Sec. 296 liability to non-employers when HRL Sec. 296(6) makes it “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.” It would be redundant for the Legislature to hold those liable who 26 willfully “aid” and “abet” unlawful discrimination and treat them as “private employers.” POINT II THE SCOPE OF THE TERM "EMPLOYER" If HRL Sec. 296(15) is limited to an aggrieved party’s “employer” does that term include one who is not the “direct employer” but purportedly exercises control over the allegedly discriminatory policies of the direct employer? Based on the following authorities, the answer is no. A. The HRL’s Legislative History Reflects That the Term “Employer” Should be Strictly Construed According to its Accepted and Dictionary Definition. The Correction Law and HRL do not provide detailed definitions of “employer.”4 The HRL’s legislative history, however, reflects that term should be construed according to its “accepted and dictionary meaning.” The New York State Temporary Commission against Discrimination, an agency created by chapter 692 of the Laws of 1944, issued a report containing the 4 HRL § 292(5) states, “The term ‘employer’ does not include any employer with fewer than four persons in his or her employ.” Correction Law § 750 (2) defines “private employer” as “any person, company, corporation, labor organization or association which employs ten or more persons.” 27 proposed statutory text and a study of employment discrimination. N. Y. Legis. Doc., 1945, No. 6. In the Matter of the Board of Higher Education v. Carter, 14 N.Y.2d 138, 143, 250 N.Y.S.2d 33 (1964), the Court relied on the Commission’s definition of “employer.” Carter involved a dispute between the Commission for Human Rights and Board of Higher Education of the City of New York over whether the Commission had the right to enforce the law against discrimination in employment in public schools. The Board argued that the Commission had no jurisdiction over the Board because it was not an “employer” under the HRL. Citing the Temporary Commission’s Report, the Court held: …The [Temporary Commission’s] report noted that "We have found no definition of the word 'employer' as clear and comprehensive as the word itself in its accepted and dictionary meaning” (emphasis added). Id. at 148. The Court held that the Board was an “employer” subject to the Commission’s jurisdiction. Id. at 149. See also, Engel v. Calgon Corp., 114 A.D.2d 108, 111, 498 N.Y.S.2d 877 (3d Dept. 1986) [Human Rights Division not collaterally estopped from different decision than the Unemployment Insurance Board 28 concluding defendant was petitioner’s employer because New York Labor Law “broadly defines employment as "any service under any contract of employment for hire, express or implied, written, or oral" [but under] the Human Rights Law … the word [employment] is intended to be interpreted in its accepted and dictionary meaning”]; State Div. of Human Rights v. Board of Coop. Educ. Services, 98 A.D.2d 958, 959, 470 N.YS.2d 209 (4th Dept. 1983) [holding defendant not an “employer” within “accepted and dictionary meaning”]. According to one commentator, the HRL’s legislative history reflects that the Legislature and Temporary Commission purposefully kept the definition of “employer” narrow. The terms “employer”5 and “employee”6 have been strictly defined in the law, for in the opinion of those 5 The original version of the HRL stated: “The term 'employer' does not include a club exclusively social, or a fraternal, charitable, educational or religious association or corporation, if such club, association or corporation is not organized for private profit, nor does it include any employer with fewer than six persons in his employ." Executive Law, art. 15, Sec. 127 [1945]. 6 The HRL’s current definition of “employee” does not include any individual employed by his parents, spouse, or child, or in the domestic service of any person except as set forth in section two hundred ninety-six-b of this title [“Unlawful discriminatory practices relevant to domestic workers”]. Executive Law § 292 (6). With the exception of the reference to domestic works, the definition of “employee” has remained unchanged since this law was promulgated in 1945. Executive Law, art. 15, Sec. 127 [1945]. 29 who drafted the law, to have attempted fuller inclusion was to have aroused resentment, risked constitutional inhibitions, and to have been most unwise, in this, the initial, stage. In any event, the door is left open to further legislation, in the light of experience and future developments, by the power given the permanent state agency, to make recommendations to the legislature. Of course, future legislatures may desire to go further. (emphasis added). Lichtash, Terry, “Ives-Quinn Act7-The Law Against Discrimination,” St. John’s Law Review: Vol. 19, Iss. 2, April, 1945, Article 18, pp. 171-172. Later New York Legislatures have not expanded the HRL definition of “employer.” The original statute, Executive Law, art. 15, the Law Against Discrimination [L. 1945, ch. 118], prohibited employment discrimination "because of race, color, creed or religion". Carter, 14 N.Y.2d at 146. The Legislature later expanded the HRL's coverage to prohibit discrimination on the basis of age, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, and domestic violence victim status. L. 1975, ch. 803; L. 1996, ch. 204; L. 2002, ch. 2; L. 2003, ch. 106; L. 2005, ch. 75; L. 2009, ch. 80; L. 2010 ch. 196. 7 In 1968, the Ives-Quinn Anti-Discrimination Law was renamed the Human Rights Law. 30 In 2014, the New York Legislature enacted protection of interns under the Executive Law (L. 2014, ch. 97, § 1, eff. July 22, 2014), noting that Sweeney v. Board of Education, 112 A.D.2d 240, 491 N.Y.S.2d 455 (2d Dept. 1985) and other cases have held that interns were not protected under the HRL because they were not employees. New York State Assembly, Memorandum in Support of Legislation, Bill A08201. The Legislature further commented: “While it made sense 30 years ago for courts to use a dictionary definition of employer to conclude that unpaid volunteers (or interns) were not covered by the NYS Human Rights Law, in today's economy the failure to protect interns - whether paid or unpaid - against sexual harassment and other forms of discrimination no longer makes sense”. Id. The Legislature did not enlarge the statutory definition of “employer” but, instead, enacted a specific provision barring discrimination against unpaid interns. HRL Sec. 296-c. The Legislature has amended the scope of “employer” in the HRL only three (3) times. First, it deleted from the definition of “employer” the provision excluding “a club exclusively social, or a fraternal, charitable, educational or religious association or corporation, if such club, association or corporation is not organized for private profit.” HRL Sec. 292(5). Second, it lowered the minimum employee threshold from six (6) to four (4) 31 employees. Id. Third, in 2015 it made the HRL applicable to all New York employers with respect to sexual harassment claims under Sec. 296(1). Id. The Legislature has changed the definition or scope of “employer” when it determined a change was needed. Since 1945, the Legislature has not seen fit to expand the term “employer” from its “accepted and dictionary” meaning. B. The HRL’s Limited Use of the Term “Employer” Was Consistent With Its Prior Interpretation By New York Courts. Before the HRL was enacted, the New York courts construed the word “employer” according to its common law meaning. Ferro v. Leopold Sinsheimer Estate, Inc., 256 N.Y. 398, 402-403, 176 N.E. 817 (1931) [The words "employer" and "employee" are used in the [workers’ compensation] act in the common-law understanding of those words”]; Kackel v. Serviss, 180 A.D. 54, 57, 167 N.Y.S. 348 (3d Dept. 1917) [“the Constitution makes no definition of "employer" or "employee" different from the common-law understanding of these words; that they constitute a contractual relation”]. The “common-law understanding” of the term “employer” was based on whether it exercised direct control over the worker. In re Electrolux Corp., 288 N.Y. 440, 447, 43 N.E.2d 480 (1942) [unemployment insurance action held broker’s salesmen were employees where “it may be inferred that respondent has erected a system of moral sanctions and indirect compulsion 32 which effectively regiment the activities of its representatives into a pattern desired by respondent of minute and detailed control”]; Christianson v. Breen, 288 N.Y. 435, 43 N.E.2d 478 (1942) [tort suit by household employee against home owners held: “there is evidence from which a jury could find that defendant Breen was the employer of Appellants. She engaged their services, instructed them as to their duties, and paid their salaries. It could be inferred that Mrs. Breen managed and controlled the household…”]; In re Morton, 284 N.Y. 167, 173, 30 N.E.2d 369 (1940) [unemployment insurance action held, “What, then, is the test of this distinction between a servant and an independent contractor? The test is the existence of a right of control over the agent in respect of the manner in which his work is to be done. A servant is an agent who works under the supervision and direction of his employer”]; Litts v. Risley Lumber Co., 224 N.Y. 321, 326, 120 N.E. 730 (1918) [workers’ compensation case held, “in the relation of employer and employee the employer has control and direction not only of the work or performance and its result, but of its details and method and may discharge the employee disobeying such control and direction”]. 33 When the HRL was enacted in 1945, the Legislature was fully cognizant that the term “employer” would be construed under the direct control standard established by New York case law. C. New York Courts Still Use the Common Law Control Test to Determine Whether an Employment Relationship Exists. Since 1945, this Honorable Court has continued to use the common law direct control test to determine whether an entity is an employer. Matter of Empire State Towing & Recovery Assn., Inc. v. Commissioner of Labor, 15 N.Y.3d 433, 439, 938 N.E.2d 934, 912 N.Y.S.2d 551 (2010) [denying unemployment insurance where “record…lacks substantial evidence of any control exercised by the association over … [the alleged employee]”]; Stringer v. Musacchia, 11 N.Y.3d 212, 217, 898 N.E. 2d 545, 869 N.Y.S.2d 362 (2008) [in an action for personal injury under New York labor law holding that a volunteer was not an “employee” under a three part test: “When a person has been hired, at least three factors are usually present. First, … the employee agrees to perform a service in return for compensation (usually monetary) from the employer… Second, ... a person is an "employee" if "the employer has the right to control the details of work performance"…Third, the employer usually decides whether the task undertaken by the employee has been completed satisfactorily” (emphasis added)]; In re Charles A. Field 34 Delivery Serv., 66 N.Y.2d 516, 522, 488 N.E.2d 1223, 498 N.Y.S.2d 111 (1985) [“Whether an employer-employee relationship exists [for workers’ compensation purpose] is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer "exercises control over the results produced * * * or the means used to achieve the results"]; In re Ted Is Back Corp., 64 N.Y.2d 725, 727, 475 N.E.2d 113, 485 N.Y.S.2d 742 (1984) [“Minimal or incidental control over one's work product without the employer's direct supervision or input over the means used to complete it is insufficient to establish a traditional employment relationship”]; Nassau Educational Chapter of Civil Service Employees Asso. v. Great Neck Union Free School Dist., 57 N.Y.2d 658, 662, 439 N.E.2d 876, 454 N.Y.S.2d 67 (1982) [because the independent security company’s employees were not the employees of the School District as “the latter neither supervised nor controlled the former,” abolishment of civil service positions, and contracting to replace services held not to violate New York State Constitution]; Liberman v. Gallman, 41 N.Y.2d 774, 780, 364 N.E.2d 823, 396 N.Y.S.2d 115 (1977) [salesman not an employee under tax law “in the absence of supervision and control of the [salesman’s] sales routine”]. 35 SIRVA and ALLIED do not exercise any of the above-described direct, detailed controls over ASTRO’s employees. Thus, Respondents are not Appellants’ common law employers. D. New York Courts Apply the Control Test to Determine Single Employer or Joint Employer Status. New York courts have held that an employee nominally employed by one employer may be employed by more than one as a special or joint employer. De Noyer v. Cavanaugh, 221 N.Y. 273, 277, 116 N.E. 992 (1917); Dennison v. Peckham Road Corp., 295 N.Y. 457, 68 N.E.2d 440 (1946); Poppenberg v. Reliable Maintenance Corp., 89 A.D.2d 791, 453 N.Y.S.2d 519 (4th Dept. 1982); Doboshinski v. Fuji Bank, Ltd., 78 A.D.2d 537, 432 N.Y.S.2d 99 (2d Dept. 1980); Bradford v. Air La Carte, Inc., 79 A.D.2d 553, 434 N.Y.S.2d 17(1st Dept. 1980); Brooks v. Chemical Leaman Tank Lines, Inc., 71 A.D.2d 405, 422 N.Y.S.2d 695 (1st Dept. 1979); Dinetz v. Brand Jewelers, 34 A.D.2d 720, 309 N.Y.S.2d 771 (3d Dept. 1970); Rossman v. Imperial Fashions, Inc., 32 A.D.2d 1023, 301 N.Y.S.2d 751 (3d Dept. 1969); Grant v. Frontier Oil Refining Co., 20 A.D.2d 493, 247 N.Y.S.2d 731(3d Dept. 1964); Janikowski v. Yardley's of London, Inc., 11 A.D.2d 577, 201 N.Y.S.2d 157 (3d Dept. 1960). 36 The key factor in determining the existence of a joint or a special employment is the purported joint employer’s control over the employee. Poppenberg, supra at 522 [“Although defendant alleges that the employees of all three corporations were formed into one pool from which any other corporation could draw workers to perform particular jobs, defendant has not furnished sufficient facts to determine who controls the workers on a particular job”]; Brooks, supra at 408[“Relevant in resolving the issue is who controls the employee's manner of working and the details of the work”]; Doboshinski, supra at 538 [“Plaintiff was directed in her work solely by the defendant”]; Rossman v. Imperial Fashions, Inc., supra at 1025 [“In adverting to the traditional "right to control" test ... we find no direct evidence of any right or of any exercise of control of claimant by Madras”]. For at least a century, New York courts have resolved cases involving “single employer” and “joint employer” status based on the common law “control” test that examines the putative joint employer’s direct control over the employees, not contractual control over their actual employer. 37 E. New York Courts Apply the “Control” Test or “Economic Reality” Test to Determine Whether an Employment Relationship Exists Under the HRL. New York courts also apply the common law control test to determine whether a defendant is an “employer” for HLR purposes. In Murphy v. ERA United Realty, 251 A.D.2d 469, 471, 674 N.Y.S.2d 415 (2nd Dept. 1998), the Second Department held, with respect to whether a real estate broker was an employee or an independent contractor, that HRL Sec. 296 (1) (a) only governs discrimination in the traditional employer-employee relationship and “… the determination of whether an employer-employee relationship exists rests upon evidence that the employer exercises either control over the results produced or over the means used to achieve the results”]. See also, Bartle v. Mercado, 235 A.D.2d 651, 654, 652 N.Y.S.2d 139 (3d Dept. 1997) [“The degree of control and direction reserved to this employer sufficiently established the existence of an employer/employee relationship”]; Sukhu v. United Parcel Serv., Inc., 2016 N.Y. Misc. Lexis 888, 2016 NY Slip Op 30454(U) (N.Y. Sup. Ct. 2016) [applying control test to determine whether UPS or security company that provided plaintiff guard to UPS was employer for HRL purposes]; Griffin v. DCJ Catering Corp., 23 Misc. 3d 1116(A) (N.Y. Sup. Ct. 2009)] [same result as Bartle]. 38 In State Division of Human Rights v. GTE Corp., 109 A.D.2d 1082, 1083, 487 N.Y.S.2d 234 (4th Dept. 1985), the Fourth Department set out the criteria for determining whether a defendant has sufficient control over a plaintiff to be deemed the employer under the HRL: (1) Whether the purported employer has power of selection and engagement of the employee; (2) Whether the purported employer pays salary or wages to the employee; (3) Whether the purported employer has power of dismissal over the employee; and (4) Whether the purported employer has power to control the employee’s conduct. See also, Sanchez v. Brown, Harris, Stevens, Inc., 234 A.D.2d 170, 651 N.Y.S.2d 477 (1st Dept. 1996) [applying GTE factors to hold “while plaintiff was paid by the condominium, there was evidence indicating that she was hired, supervised and fired by the managing agent, and that such was sufficient to raise an issue of fact as to whether there was an employment relationship between plaintiff and the managing agent”]. In Patrowich v. Chemical Bank, 63 N.Y.2d 541, 543-544, 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984) the Court concluded that the HRL’s definition of an “employer" provides no clue whether individual employees 39 of a corporate employer may be sued as employers and held "that 'economic reality' governs who may be sued." Id. at 543. The Court elaborated on the "economic reality" test only by reference to whether the individual employee in question is "shown to have any ownership interest or power to do more than carry out personnel decisions made by others." Id. at 543-544. Although Patrowich borrowed the "economic reality" test from a line of Fair Labor Standards Act (FLSA) cases, it did not adopt the full “economic reality” test used in the FLSA cases. In Carter v. Dutchess Community Coll., 735 F.2d 8, 12 (2d Cir. 1984), cited by Patrowich, the Second Circuit held that "[t]he 'economic reality' test … is understood to include inquiries into: 'whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'” Unlike the HRL’s common law and dictionary meaning of “employer,” the FLSA definitions of "employer" and "employee" are "strikingly br[oad]," "stretch[ing] the meaning of 'employee' to cover some parties who might not qualify as such under a strict application of traditional agency law principles." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 40 326, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992) [“it defines the verb "employ" expansively to mean "suffer or permit to work"]; Falk v. Brennan, 414 U.S. 190, 195, 94 S. Ct. 427, 38 L. Ed. 2d 406 (1973) [noting "expansiveness" of FLSA's definition of employer]. In sum, the New York courts have applied the traditional control test, the GTE Corp. multifactor test or the Patrowich economic reality test to determine whether an employment relationship exists under the HRL where more than a single entity is an alleged “employer.” There is no sound reason to adopt the federal “single employer” or “joint employer” doctrines for HRL purposes. F. Federal Employer Doctrines. The Certification Order seeks this Court’s guidance on whether either Respondent may be an employer under Section 296 (15) or an aider and abettor under Section 296 (5) as a result of ALLIED’s CLP rules prohibiting its agents from using workers with sexual offense convictions on ALLIED’s interstate shipments. Giving ALLIED or SIRVA HRL employer status would be tantamount to adopting the “interference” doctrine followed by Spirt v. Teachers Ins. and Annuity Ass'n, 691 F.2d 1054 (2d Cir. 1982), vacated and 41 remanded on other grounds, 463 U.S. 1223, 103 S. Ct. 3565, 77 L. Ed. 2d 1406 (1983). In Spirt, the Second Circuit held there may be an "indirect" employment relationship under Title VII where one party "significantly affects access of any individual to employment opportunities." 691 F.2d at 1063. The “interference” doctrine, however, was later rejected by the Second Circuit in Gulino v. N.Y. State Educ. Dept., 460 F.3d 361 (2d Cir. 2006) and has not been applied since. In Gulino, the Court stated, “Congress limited Title VII’s additional liability to labor unions and employment agencies” and “we conclude that all other parties with a similar nexus to a plaintiff's employment are excluded from the Title VII liability scheme.” Id. at 376. Gulino reviewed the Supreme Court’s decision in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992) noting that the High Court: … ruled that the common-law should supply the definition of "employee" in the absence of a statutory definition…. the holding in Darden "eliminate[d] the chief rationale for employing a broader test in the context of anti- discrimination legislation -- namely, that a more liberal construction would better effect the remedial purposes of the . . . legislation." …. Since Darden, we have declined to adopt as broad a reading of the 42 "interference" test as that advanced by the district court (emphasis added). Id. at 378. Gulino further reasoned: [T]he district court's broad reading of Spirt is doubtful in light of a number of recent decisions by this Court… "a decision on whether a worker is an 'employee' [rather than an independent contractor] requires the application of the common law of agency."… As noted above, this Court has been careful to point out that "a prerequisite to considering whether an individual is [an employee] . . . is that the individual have been hired in the first instance." … [E]vidence of an employment relationship under Title VII will generally turn on "whether [a plaintiff] has received direct or indirect remuneration from the alleged employer."… "[i]n the absence of a clear contractual employer- employee relationship, a party claiming to be an employee under Title VII must come forward with substantial benefits not merely incidental to the activity performed in order to satisfy this Circuit's remuneration test." … All of these decisions are consistent with the Supreme Court's decisions in Reid and Clackamas Gastroenterology Associates, both of which require adherence to common law principles of agency in Title VII cases … and a broad application of the interference test is plainly inconsistent with traditional principles of agency law [internal citations omitted] (emphasis added). Id. at 378-379. The Certification Order suggests that the federal “single employer” and “joint employer” doctrines might be applied to HRL Sec. 296(15) in this case because they are applied in Title VII cases. Extending 43 the “single employer” and “joint employer” doctrines to the HRL is unsupported by the HRL’s text legislative purpose and history, New York case law and federal law. Gulino establishes that such an extension is also unwarranted by Second Circuit precedent. As discussed below, the federal single and joint employer doctrines were first developed by the National Labor Relations Board (“NLRB”) to determine its jurisdiction and have been constantly in flux. (1) The Federal Single Employer Doctrine Should Not be Adopted. (a) The United States Supreme Court Has Not Adopted the Single Employer Doctrine. The United States Supreme Court has not adopted the “single employer” standard in a Title VII or any other context. The Second Circuit and several other U.S. Circuit Courts of Appeal have applied the “single employer” standard on the ground it was used by the Supreme Court in a labor dispute in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 13 L. Ed. 2d 789 (1965). See, Miles v. Univ. of the Dist. of Columbia, 2013 U.S. Dist. LEXIS 155236 (D.D.C. 2013) [“However, this Circuit has not adopted the NLRB standards test in the Title VII context”]; Cardinale v. S. Homes of Polk 44 Cnty, Inc., 310 F. App'x 311, 313 (11th Cir. 2009) [citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987) [collecting cases from the Sixth and Ninth Circuits]; Pearson v. Component Tech. Corp., 247 F.3d 471, 486 (3d Cir. 2001) [collecting cases]; Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). The Supreme Court’s holding in Local 1264 is quite narrow. The Supreme Court applied the NLRB’s “single employer” standard to determine that an employer satisfied the agency’s $100,000 gross receipts jurisdictional requirement by considering the income of other nominally separate entities. The “single employer” standard was only applied for NLRB jurisdictional coverage, not to determine the legal liability of associated non-employers entities. In Cavallaro v. UMass Mem. Health Care, Inc., 971 F. Supp. 2d 139, 149 (D. Mass. 2013) the District Court commented: Plaintiff cites to a Ninth Circuit case…and a Supreme Court case, Radio and Television Broadcast Technicians … as supporting the use of these factors to determine the liability of multiple employers under the FLSA. But that reliance is misplaced. Both cases focused on whether two entities constitute a "single enterprise" for jurisdictional coverage, not the liability of those employers for FLSA violations’]. “Indeed, … the jurisdictional question of coverage is separate and 45 distinct from the question of liability as joint employers.” [citation omitted]. See also, Cornell v. CF Ctr., LLC, 410 Fed. Appx. 265, 267 (11th Cir. 2011) ["The finding of an enterprise is relevant only to the issue of coverage. Liability is based on the existence of an employer-employee relationship"]. (b) The United States Supreme Court Requires “Employer’ and “Employee” be Given their Common Law Meaning in the Absence of Statutory Definitions. The United States Supreme Court has held that when a federal statute "'uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.'" Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989) [quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S. Ct. 2789, 69 L. Ed. 2d 672 (1981)]. Reid held that, "when Congress has used the term 'employee' without defining it ... Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." 490 U.S. at 739-40; Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-45, 123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003) [applying federal common-law of agency to ADA definition of "employee"]. 46 In Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992), the High Court warned against judicially expanding the definition of “employer” and “employee” to implement a perceived Congressional purpose: In taking its different tack, the Court of Appeals cited NLRB v. Hearst Publications, Inc., 322 U.S. at 120-129, and United States v. Silk, 331 U.S. at 713, for the proposition that "the content of the term 'employee' in the context of a particular federal statute is 'to be construed "in the light of the mischief to be corrected and the end to be attained…But Hearst and Silk, which interpreted "employee" for purposes of the National Labor Relations Act and Social Security Act, respectively, are feeble precedents for unmooring the term from the common law. In each case, the Court read "employee," which neither statute helpfully defined, to imply something broader than the common-law definition; after each opinion, Congress amended the statute so construed to demonstrate that the usual common-law principles were the keys to meaning…(emphasis added). …a principle of statutory construction can endure just so many legislative revisitations, and Reid's presumption that Congress means an agency law definition for "employee" unless it clearly indicates otherwise signaled our abandonment of Silk's emphasis on construing that term "'in the light of the mischief to be corrected and the end to be attained.'" 503 U.S. at 326. 47 (c) The “Single Employer” Test is Not Supported by Common Law. Consistent with the Supreme Court’s directive in Darden that common law be applied to define “employer,” the Second Circuit follows common law agency principles in Title VII cases. In Gulino v. N.Y. State Educ. Dept., 460 F.3d 361 (2d Cir. 2006) the Court used common law agency principles to decide whether the New York Education Department and the New York City Board of Education were employers under Title VII. See also, York v. Ass'n of the Bar, 286 F.3d 122 (2d Cir. 2002) ["the question of whether someone is or is not an employee under Title VII usually turns on whether he or she has received direct or indirect remuneration from the alleged employer"]; Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir. 2000) ["a decision on whether a worker is an 'employee' requires the application of the common law of agency"]; Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999) [“evidence of an employment relationship under Title VII will generally turn on "whether [a plaintiff] has received direct or indirect remuneration from the alleged employer"]; O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) ["a prerequisite to considering whether an 48 individual is [an employee] ... is that the individual have been hired in the first instance”]. After Darden, the Second Circuit applied the “single employer” test to construe "employer" in a Title VII matter. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). The rationale behind the “single employer” test is that "Title VII … should be given a liberal construction to implement the purposes of Congress to eliminate the inconvenience, unfairness and humiliation of racial discrimination." Parham v. Southwestern Bell Telephone, 433 F.2d 421, 425 (8th Cir. 1970). The United States Supreme Court, however, cautioned in Darden, supra, that the federal courts may not expand the scope of “employer” and “employee” to implement their views of Congressional intent. (d) The Single-Employer Doctrine is Inapplicable to This Case. In Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2005) the Second Circuit explained the “single employer” doctrine: "A 'single employer' situation exists 'where two nominally separate entities are actually part of a single integrated enterprise....'" In such circumstances, of which examples may be parent and wholly-owned subsidiary corporations, or separate corporations under common ownership and management, the nominally distinct entities can 49 be deemed to constitute a single enterprise … There is well-established authority under this theory that, in appropriate circumstances, an employee, who is technically employed on the books of one entity, which is deemed to be part of a larger "single- employer" entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part of the single integrated employer. (emphasis added). Id. at 198-199. A year later, the Second Circuit limited the single-employer doctrine to cases involving employees of wholly-owned subsidiaries. Gulino v. N.Y. State Educ. Dept., supra at 379 (2d Cir. 2006) [“In this Circuit, this analysis has been confined to … where the plaintiff is an employee of a wholly-owned corporate subsidiary…”]; Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014) [same result]; Brown v. Daikin Am., Inc., 756 F.3d 219 (2d Cir. 2014) [same result] Levine v. Reader's Digest Ass'n, 347 Fed. Appx. 602 (2d Cir. 2009) [same result]. The single employer doctrine applies four (4) criteria to determine whether two or more companies are sufficiently interrelated to constitute a single entity: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control of the entities in question. Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2005); Cook v. Arrowsmith., 69 50 F.3d 1235, 1240-1241 (2d Cir. 1995). "Courts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations." Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983). Neither ALLIED nor SIRVA are ASTRO’s parent company, nor does either defendant own any part of ASTRO. Neither SIRVA nor ALLIED hires, fires, pays or supervises ASTRO’s employees. ALLIED’s CLP rules that prevent dangerous felons from gaining access to its interstate customer’s homes and property fall far short of “centralized control” of ASTRO’s labor relations. To determine whether centralized control of labor exists, the courts consider whether the putative joint employer is "handling job applications, approving personnel status reports, [or] exercising veto power over major employment decisions." Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000). This is no evidence of such conduct on the part of ALLIED or SIRVA. (e) The Single-Employer Test Should Not Be Applied to the HRL. Even if the “single employee” test might be appropriate in some Title VII cases, grafting it onto the HRL would contravene the New York 51 Legislature’s intent and New York judicial precedents. Only a few New York courts have applied the “single employer” doctrine in an HRL context. Strauss v. New York State Dept. of Educ., 26 A.D.3d 67, 805 N.Y.S.2d 704 (3d Dept. 2005) [applying single employer test and holding plaintiff- employee of State Education Department not a Labor Department employee]; Lambert v. Macy's E., Inc., 34 Misc. 3d 1228(A), 951 N.Y.S.2d 86, (Sup. Ct. 2010) [no “integrated enterprise” between Macy’s and its parent company Federated]. Strauss and Lambert applied the “single employer” test because the courts concluded, "The standards for recovery under the New York State Human Rights Law are the same as the federal standards under title VII of the Civil Rights Act of 1964" [citing Forrest v. Jewish Guild for Blind, 3 NY. 3d 295, 305, n 3 (2004). With respect to alleged criminal conviction employment discrimination, however, Correction Law Article 23-A and HRL Sec. 296(15) liability standards are not at all analogous to Title VII civil rights standards. As discussed in Point I(B), Appellants’ HRL claims against Respondents do not involve a civil right created by HRL Sec. 291. The HRL’s legislative history establishes that the word “employer” should be construed according to its “accepted and dictionary 52 meaning.” Moreover, this Court has consistently applied the common law definition of “employer” in deciding HRL and other cases. See Point II(B) above; Miles v. Univ. of the Dist. of Columbia, 2013 U.S. Dist. LEXIS 155236 * (D.C. Cir. 2013) [District of Columbia Human Rights Act “claims are generally scrutinized under the same legal framework used by courts to analyze claims under Title VII," … unless "there is an indication either from legal precedent or statutory language that the DCHRA is meant to depart from the federal courts' Title VII jurisprudence”]. Some New York courts have applied the federal “single employer” doctrine for the limited purpose of ensuring that corporations do not avoid HRL’s four (4) employee numerosity requirement by spreading their employees over different corporate entities. Matter of Argyle Realty Assocs. v. New York State Div. of Human Rights, 65 A.D.3d 273, 279 (2d Dept. 2009). The numerosity issue is not relevant to this case. (2) The Federal “Joint Employer” Doctrine Should Not be Adopted. (a) The United States Supreme Court Has Not Accepted the Joint Employer Doctrine for Title VII Purposes. The United States Supreme Court has not addressed the “joint employer” doctrine in a Title VII context case, but tangentially discussed the 53 doctrine in Boire v. Greyhound Corp., 376 U.S. 473, 84 S. Ct. 894, 11 L. Ed. 2d 849 (1964). The issue in Boire was whether, for NLRB jurisdictional purposes, the Greyhound Corporation and Floors, an independent corporation unrelated to Greyhound, were joint employers of Floor's employees who were working under contract in Greyhound facilities. The Board found that while Floors hired, paid, disciplined, transferred, promoted and discharged the employees, Greyhound took part in setting up work schedules, in determining the number of employees required to meet those schedules, and in directing the work of the employees in question … On this basis, the Board … concluded that Greyhound and Floors were joint employers, because they exercised common control over the employees. 376 U.S. at 481. The Supreme Court reversed the Fifth Circuit’s affirmance of the NLRB’s ruling on procedural grounds and defined the relevant issue as whether Greyhound had sufficient control over the employees’ work to qualify as their joint employer with Floors. Id. (b) The Joint Employer Standard is Not Established in the Second Circuit. In Arculeo v. On-Site Sales & Mktg., L.L.C., 425 F.3d 193 (2d Cir. 2005), the Second Circuit held: In a "joint employer" relationship, in contrast, "there is no single integrated enterprise. A 54 conclusion that employers are 'joint' assumes that they are separate legal entities, but that they . . . handle certain aspects of their employer-employee relationship jointly." …Where this doctrine is operative, an employee, formally employed by one entity, who has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity, may impose liability for violations of employment law on the constructive employer, on the theory that this other entity is the employee's joint employer. Id. at 199. Beyond describing the “joint employer” doctrine, the Second Circuit has not developed a test to determine when a joint employer relationship exists. Shiflett v. Scores Holding Co., 601 Fed. Appx. 28, 31 (2d Cir. 2015) [“we have not yet "fully . . . described a test for what constitutes joint employment in the context of Title VII"]; International House v. NLRB, 676 F.2d 906, 912 (2d Cir. 1982) [“this Circuit has yet to address the proper standards for determining whether an employer "possessed sufficient control over the work of the employees to qualify as a joint employer…”]; St. Jean v. Orient-Express Hotels Inc., 963 F. Supp. 2d 301, 308 (S.D.N.Y. 2013) [“the Second Circuit has "not yet fully analyzed or described a test for what constitutes joint employment in the context of Title VII”]. In International House, supra, the Second Circuit considered five (5) factors relevant to joint employer control over employees: (1) hiring and 55 firing; (2) discipline; (3) pay, insurance and records; (4) supervision; and (5) participation in the collective bargaining process. The Second Circuit acknowledges that an essential element for determining a defendant’s joint employer status is proof of its immediate supervision or control of the employees in question. Zheng v. Liberty Apparel Co., 355 F.3d 61, 69 (2d Cir. 2003); Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132 (2d Cir. 1985). It is undisputed that there is no such evidence of Respondent’s control over Appellants. Based on the “joint employer” criteria used by the Second Circuit, that doctrine has no application to this case. SIRVA and ALLIED respectfully submit that this case offers no justification for departing from the common law, dictionary definition of “employer” adopted by the New York Legislature and this Court with respect to the HRL. (c) Other Federal Circuits Have Multiple Joint Employer Standards. The Fourth Circuit asks whether the employer "possess[es] sufficient indicia of control over the work of the employees". NLRB v. Jewell Smokeless Coal Corp., 435 F.2d 1270, 1271 (4th Cir. 1970). The Third and Fifth Circuits examine whether the employer shares or codetermines matters governing employees' essential terms and conditions of employment. NLRB 56 v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982); Ref-Chem Company v. NLRB, 418 F.2d 127, 129 (5th Cir. 1969). The Eighth Circuit endorses a four-factor test. Pulitzer Publishing Co. v. NLRB, 618 F.2d 1275, 1279 (8th Cir.), cert. denied, 449 U.S. 875, 101 S. Ct. 217, 66 L. Ed. 2d 96 (1980). The Ninth Circuit concentrates on the degree of an employer's "authority over employment conditions which are within the area of mandatory collective bargaining." Sun-Maid Growers v. NLRB, 618 F.2d 56, 59 (9th Cir. 1980). The D.C. Circuit scrutinizes "the amount of actual and potential control … over the … employees." International Chemical Workers Union Local 483 v. NLRB, 561 F.2d 253, 255 (D.C.Cir.1977). (d) The NLRB’s Joint Employer Standard Is in Flux. The NLRB’s definition of “joint employer” for its jurisdictional test has substantially changed over time. The NLRB originally asked whether the putative employer “possessed sufficient control over the work of the employees.” Boire, 376 U.S. at 481; NLRB v. Browning-Ferris Indus., 691 F.2d 1117 (3d Cir. 1982). Applying that standard, the NLRB found joint employer status based on “indirect control” over wages and discipline, In re Floyd Epperson, 202 NLRB 23 (1973), enf’d, 491 F.2d 1390 (6th Cir. 1974); 57 Since the mid-1980s, the NLRB requires a stricter showing “that the employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.” TLI, Inc., 271 NLRB 798, at *1 (1984). Under the NLRB’s previous standard for over thirty years, joint employer status only existed where “two separate entities share or codetermine those matters governing the essential terms and conditions of employment.” TLI, Inc., supra, Laerco Transp., 269 NLRB 324 (1984). The level of control exercised by a potential joint employer had to be “direct and immediate” as to employment actions such as hiring, firing, discipline, supervision, and direction. Airborne Freight Co., 338 NLRB 597 (2002). In Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015) the NLRB recently adopted a new two-part joint employer test that considers: (1) whether a common law employment relationship exists; and (2) whether the potential joint employer “possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful bargaining.” Browning-Ferris is presently on appeal to the U.S. Court of Appeals for the District of Columbia. However, it ought to have no bearing on this case which should be determined by the HRL’s legislative 58 history, purpose and New York stare decisis, not by one of the NLRB’s fleeting jurisdictional tests. (e) Whichever of the Many “Joint Employer” Tests Might be Applied to This Case, ALLIED and SIRVA are not Appellants’ Employers. In several factually analogous cases, New York federal and state trial courts, and other courts, correctly held that contracting parties were not “employers” under the HRL for merely refusing to work with another contracting party’s employees. Lawrence v. Adderley Indus., 2011 U.S. Dist. LEXIS 14386 (E.D.N.Y. 2011) [where Cablevision was Adderley’s only client and required Adderley to perform criminal background checks to protect customer safety, Cablevision held not a “joint employer” because it exercised no actual or functional control over the plaintiff]; Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, 689-690 (D.Md. 2010) [under facts analogous to Lawrence and instant case, Comcast held not to be plaintiff’s employer where Comcast’s “role in hiring and firing technicians was only in the context of quality control”]; Dinah v. Salzman Electric Co., Inc. 2005 N.Y. Misc. Lexis 3591 (N.Y. Sup.Ct. 2005) [court rejected plaintiff’s argument that expansive Title VII definition of “employer” should apply to HRL claims and held defendant was not a “joint employer” under federal law]. 59 ALLIED’s interstate CLP standards are similarly designed to protect ALLIED’s customers and their families in their homes and businesses. ASTRO’s helpers enter ALLIED’s customers’ homes to pack and move their property in situations where the helpers cannot be constantly watched during the chaos a typical move day. ALLIED’s CLP rules stem from the need to provide the safe and reliable service to its customers that they rightly expect. ALLIED’s interstate CLP rules do not make it the “employer” of its agents’ contractors and employees. Neither SIRVA nor ALLIED was Appellants’ “employer” under New York or federal law. POINT III NO EXPANSION OF HRL SECTION 296(6) AIDING AND ABETTING LIABILITY IS WARRANTED BY THIS CASE The third question assumes ALLIED's CLP rules require conviction discrimination prohibited by the HRL. If that were the case, the HRL would command Goldman Sachs to hire Bernie Madoff as its CFO. Based on the established facts and procedural history of this case, ALLIED and SIRVA respectfully submit that the third certified question would be better framed: Can an out-of-state company having only a limited agency contract relationship with a New York employer incur aiding and 60 abetting liability for the New York employer’s hiring and firing decisions that are adjudicated to be lawful? The answer is obviously not. A. SIRVA and ALLIED Cannot be Liable to Appellants for Aiding and Abetting ASTRO’s Lawful Conduct. The Certification Order frames the third question by excluding from consideration the critical facts that the jury found ASTRO committed no violation of HRL Sec. 296(15) and Appellants chose not to appeal that verdict. The jury conclusively determined there was no wrongdoing that SIRVA and ALLIED could have aided or abetted (A-365; A-625). Consequently, there are no facts or legal reasons warranting extension of HRL Sec. 296(6) aiding and abetting liability in this case. Where no HRL violation by a defendant can be established, other Respondents cannot be held liable for aiding and abetting such an alleged violation. In Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 315, 786 N.Y.S.2d 382 (2004) the Court held, “…because plaintiff has failed to raise a triable issue of material fact that she was either retaliated against or discriminated against because of her race, her claims that Respondents aided and abetted each other in any discrimination or retaliation cannot survive.” The Court further held, “The standard for proving aiding and abetting is that 61 the Respondents "actually participated" in the alleged discriminatory acts….” 3 N.Y.3d at 329-330. See also Kelly G. v. Board of Education of City of Yonkers, 99 A.D. 3d 756, 758-59, 952 N.Y.S.2d 229 (2d Dept. 2012) [“Appellants cannot impose liability on the Board for aiding and abetting a violation of the Human Rights Law pursuant to Executive Law § 296 (6) where, as here, no violation of the Human Rights Law has been established”]; Strauss v. New York State Department of Education, 26 A.D. 3d 67, 73, 805 N.Y.S.2d 704 (3d Dept. 2005) [“Where no violation of the Human Rights Law by another party has been established, we find that an individual employee cannot be held liable for aiding or abetting such a violation”]. Even if ASTRO had been held liable at trial for violating HRL Sec. 296(15), SIRVA and ALLIED would not be liable under the pertinent aiding and abetting standard because they had no actual participation in, or even knowledge of, Appellants’ terminations. Under New York law, the elements of aiding and abetting are: (1) the existence of a violation by the primary wrongdoer; (2) knowledge of the violation by the aider and abettor; and (3) proof that the aider and abettor substantially assisted the primary 62 wrongdoer. Chemtex, LLC v. St. Anthony Enters., Inc., 490 F Supp. 2d 536, 545 (S.D.N.Y. 2007). A person knowingly participates in a tort only when he or she provides "substantial assistance" to the primary violator. Kaufman v. Cohen, 307 A.D.2d 113, 126 (1st Dept. 2003); King v. George Schonberg & Co., 233 A.D.2d 242, 243, 650 N.Y.S.2d 107 (1996); National Westminster Bank USA v. Weksel, 124 A.D.2d 144, 148-149, 511 N.Y.S.2d 626 (1st Dept. 1987), lv. denied 70 N.Y.2d 604 (1987]); Restatement (Second) of Torts § 876 (1979) ["For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself."]. In Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), cited by the United States Supreme Court as "a comprehensive opinion on the subject [of aiding and abetting],"8 the D.C. Circuit defined the scope of aiding and abetting tort liability in a civil context: … (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part 8 Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 181, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). 63 of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation. Id. at 477-478. Halberstam, applied five (5) factors to determine whether the defendant's assistance was sufficiently substantial: “(1) the nature of the act encouraged; (2) the amount of assistance given by the defendant; (3) his presence or absence at the time of the tort; (4) his relation to the other tortfeasor and (5) his state of mind.'" 705 F.2d at 478. As to the first Halberstam factor, ALLIED’s CLP criteria prohibit its statutory household goods agents from using convicted violent sex offenders only with respect to ALLIED’s interstate shipments. ALLIED’s rules do not apply to its agents’ employment practices in their own local moving businesses. ALLIED’s CLP rules do not constitute tortious activity in New York, nor do they violate the Correction Law and HRL which permit classification and non-employment of dangerous felons in appropriate circumstances to promote public safety. It is undisputed that ALLIED and SIRVA did not actually participate in Appellants’ alleged termination or even know of their existence. Thus, Respondents do not satisfy the second and third Halberstam criteria. As to the fourth and fifth factors, the relationship between ALLIED and ASTRO 64 was purely contractual and limited to ALLIED’s interstate moving business which is entirely separate from ASTRO’s intrastate New York business. The jury found no discrimination by ASTRO that SIRVA and ALLIED could have aided and abetted. In any event, Respondents have no liability under HRL Sec. 296(6) based on the facts of this case and New York’s “substantial assistance” standard for aiding and abetting liability. B. Expanding HRL Sec. 296(6) Liability is Not Supported by New York Law, Public Policy or the Facts of This Case. The third certified question asks this Court to assume that ALLIED’s CLP rule barring its agents from assigning convicted violent sexual predators to perform interstate moving work in customers’ homes “requires” discrimination prohibited by HRL Sec. 296 (15) (A-685). The question as framed and its underlying assumption are untenable. The Certification Order implicitly acknowledges that ALLIED and SIRVA did not actually participate in or know about Appellants’ termination. However, the Order suggests that ALLIED’s CLP’s rule barring its agents from sending convicted “Sexually Violent Offenders” into customers’ homes may, standing alone, suffice to hold ALLIED and SIRVA 65 liable for aiding and abetting Appellants’ lawful termination by ASTRO, even without Respondents’ actual participation or assistance to ASTRO. The mere existence of ALLIED’s CLP rules against agents sending convicted sex offenders into customers’ homes on interstate shipments does not violate HRL Secs. 296(6) or 296(15). The CLP rules do not require ALLIED’s agents to disregard or violate the HRL. On the contrary, ALLIED’s CLP rules are entirely consistent with the HRL and promote public safety and confidence in ALLIED’s services. ALLIED’s CLP rules do not “require,” aid and abet an HRL violation where, as here, there is (1) no underlying HRL discrimination; (2) no HRL violation by a primary party and (3) no “actual participation” by Respondents in any HRL violation. Hypothetically, ASTRO might have elected to continue employing both Appellants on ASTRO’s local moves or in its warehouse. Indeed, ASTRO contends it did not terminate GRIFFIN and offered him warehouse work (A-656, n.2). ASTRO could have weighed the Sec. 753 factors and determined that either the "direct relationship" or "unreasonable risk" exceptions applied before confronting Appellants with their criminal records. In either event, ALLIED and SIRVA would have had no direct role in any such ASTRO decisions. 66 The District Court correctly reasoned that if ASTRO had continued employing both Appellants without assigning them to ALLIED’s interstate jobs, that would merely have changed their job responsibilities and not denied them employment under the HRL (A-359). There is no factual or legal basis for finding that ALLIED’s CLP rules, standing alone, constitute aiding and abetting unlawful discrimination. There is no justification for extending aiding and abetting liability to ALLIED based solely on its CLP rules where there was no unlawful conduct by ASTRO or either Respondent. The Certification Order posits that ALLIED’s CLP rules “require” unlawful discrimination without evidence or legal analysis and despite the jury’s verdict to the contrary. Respondents respectfully submit that this Court should be wary of discarding New York’s “substantial assistance” aiding and abetting standard for one based on a third-party non- employer’s speculative, indirect contractual influence over the direct employer’s free will. 67 CONCLUSION Correction Law Article 23-A and HRL Sec. 296(15) make public safety their paramount policy goal. Sec. 291 does not give “civil right” status to convicted persons’ access to employment. The HRL’s legislative history and relevant precedents of this Honorable Court strongly favor preserving the common law, dictionary definition of “employer” and New York’s well- defined aiding and abetting liability standards. The facts of this case do not warrant expanding the scope of the HRL’s term “employer” or its aiding and abetting liability standards. It would be a travesty if sexually violent felons who are prohibited by Correction Law 168-1(6) from unsupervised contact with children could exploit the Correction Law and HRL to sue non-employers to gain access to consumers’ homes and many other places where they pose an unreasonable risk to public safety. Respondents respectfully submit that the Court should answer to the first certified question in the affirmative, the second question in the negative and the third question in the negative. Dated: New York, New York February 6, 2017 GEORGE W. WRIGHT & ASSOCIATES, LLC Attorneys for Respondents-Appellees Wall Street Plaza 88 Pine Street, 7th Floor New York, NY 10005 (20 1) 342-8884 68 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR 500.10) that the foregoing Brief was prepared on a computer using Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Point size: Line spacing: Times New Roman 14 Double Word Count. The total number of words in this Brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 13 ,540 words. Dated: New York, New York February 6, 2017 George W. Wright GEORGE W. WRIGHT & ASSOCIATES, LLC Attmneys for Respondents-Appellees Wall Street Plaza 88 Pine Street, 7th Floor New York, NY 10005 (20 1) 342-8884 69