Trathony Griffin and Michael Godwin, Appellants,v.Sirva, Inc. and Allied Van Lines, Inc., Respondents.BriefN.Y.March 28, 2017Exhibit A COURT OF APPEALS STATE OF NEW YORK TRA1liONY GRIFFIN and MICHAEL CTQ--2016-00002 GODWIN, Appellants, v. SIRV A, INC. and AWED VAN LINES, INC., Respondents. PROPOSED AMICUS CUJUAE BRIEF OF LABOR AND EMPLOYMENT LAW PROFESSORS john Ware Upton 217 Broadway 11707 NewYork,NY 10007 Tel.: (212) 233-9300 Fax: Attorney for Proposed Amid Curiae Labor IE Employment Law Professors TABLE OF CONTENTS T.ABI.E OF Atrrii.Oitl'l.IES ......................... I •• I •• I ............................... I ......... 2 mJDES'I' OF .AMI'O CllllUE. ............................ I I I I .................................... 1 INTR.ODUCDON lr SUMMARY OF ARGUMENT-·--·-·-····--····-·--······.2 ~ .......................... --............................................................. 4 1. Indirect and Contingent Employment Arrangements are Inaeasfngly Common fn the Contemporary Economy, and Raise Substantial Concerns for Anti-Discrimination I.aw ..................... - ......................................................... 4 n. To Fmther the Statutory Purpose of limiting the Use of Criminal Histories to Disqualify Individuals From Employment,§ 296(15) Should Apply to Otherwise-Covered Employers Under the Human Rights Law Whose Contractual or Business Relationship With the Direct Employer Gives Them Control OVer a Plaintiffs Eligibility for Employment. ................. 6 A. Indirect Employer Uability is a Well-Established Concept Under Federal and State Employment Discrimination Statutes ............................. 6 B. Joint Employer liability Furthers the Purpose of§ 291(15) By Preventing the Use of Indirect Employment Arrangements as a Loophole to Evade the Statutory Resbiction Against Denying Employment Opportunities Based on Past Criminal Convictions-....... 12 CONQ.U'SION ......................................................................................... 15 TABLE OF AUTHORITIES cases Ansoumana v. Gristede~ Operating Corp., 255 F. Supp. 2d 184 (S.D.N.Y. 1998) •• 15 An:aleo v. On-Sits Sales & Marlceting, LLC, 425 F .3d 193 (2d Cir. 2005) ........ 7, 8,12 .Bnmlcovv.Hazzard, 142A.D.3d445 (lstDep't2016) .................................. 7, 9,12 Batlerv. Drive Auto. Indus. of Am., Inc., 793 F .3d 404 (4th Cir. 2015)-........ 10, 15 Commodore v. Genesis Hetllth Ventures, Inc., 63 Mass. App. Ct. 57, 824 N.E.2d 453 (2005) ••• _ ......................................................................................................... 10 EEOCv. Sage.Realf:y, 507 F. Supp. 599 {S.D.N.Y.1981) .......... - .......................... 11 Faush v. Tuesday Morning, Inc. 808 F .3d 208 (3d Cir. 2015) ........ ·-·---···-7, 9 Grf/lfn v. Sfrva, 835 F.3d 283 (2d Cfr. 2016) ................................................ .2, 13,14 Guerra v. Tishmtm East .Realf:y, 52 Fair Empl. Prac. cas. (BNA) 286 (S.D.N.Y. 1989)-------··-----·-·-··----.................... - ........ .11 Gulinov. N.Y. State Educ. Dep't, 460 F.3d 361 (2d Cfr. 2006) .................................. 8 Kaiserv • .Raoul's Rest. Corp., 72 A.D.3d 539 (1St Dep't 2010) .................... - ......... .3 Kologyv. My Spaa NYC Corp., 171 F. Supp. 3d 778 (E.D.N.Y. 2016) ..................... 7 Lima v. Addeco, 634 F. Supp. 2d 394 (S.D.N.Y. 2009) ......................................... 7, 8 Llampallas v Mini-Circuits, Lab. Inc., 163 F3d 1236 (11th Cir 1998) .................... 12 Magnuson v. Petzlc Tedmical Servfca, Inc., 808 F. Supp. 500 (E.D. Va. 1992) ..... 11 Matthews v. New York Life Ins. Co., 780 F. Supp. 1019 (S.D.N.Y.1992) ............ 7, 15 MaxweU v. N.W. Ayer, Inc., 159 Misc. 2d 454 (Sup. Ct. N.Y. Cnty. 1993) •••••••••••••• 8 Myers v. Garfield, 679 F. Supp. 2d 598 (E.D. Pa. 2010)-..................... - .......... 9 N.LR.B. v. Browning-Ferris Indus. ofPennsylvanfa, Inc., 691 F .2d 1117 (3d Cfr. 1982)---···--····--·-·-··--··-···-· ....................................................................... .8 u NME Hosps., Inc. v.lemlels, 994 S.W .2d 142 (Tex. 1999) ..................................... 11 .Palrowlch v Chemical Bank, 63 NY2d 541 (1984) .................. ·---····----·-···.3 ovadia v 0/f. oflndus. Bd. of Appedls, 19 NY3d 138 (2012) .................................... .3 Plaso v. {]KG, U.C. 553 Fed. App'x 199 (3d Cir. 2014) ............................................. 9 Poffv. Pradantiallnsunmce Co. of Arnerit:a, 882 F. Supp. 1534 (E.D. Pa. 1995) ••• 11 Richardson v. Centt.uy Products, Inc.., 163 F. Supp. 2d 771 (N.D. Ohio 2001) 10, 15 sdmejder v. Regency Heights ofWirulham, LLC, No. 3:14-cv-G0217-V AB, 2016 WL 7256675 (D. Conn. Dec. 15, 2016). ___ .. ____ .................................... 9 Shfplcevlch v. Staten Island Univ. Hosp., No. 08-CV-1008 FB .JMA, 2009 WL 1706590 (E.D.N.Y.june 16, 2009) .... --·--··-·-··-·-·---·-· ............ 6 St. jean v. Orient-Express Hotels, Inc., 963 F. Supp. 2d 301 (S.D.N.Y. 2013) •••••••• 12 Stlll2 DiY. o{lfuman Rights Y. G'lE Corp., 109 A.0.2d 1082 (4th Dep't 1985) ••• .8,15 Ullfv. o{TfDltiS tttEl Paso v. Ochoa, 410 S.W .3d 327 (Tex. App. 2013) ••• - ............ 10 statutes Correct. I.aw, Article 23-A, § 752 ....................... - .............................................. 13 Exec. I.aw § 290 ........................................................................................................ .2 Exec. law§ 296(15) ............................................ - ................................. 1, 2, 6,13 Exec.l.aw § 300 ........................................................ Ill I 11111111111 ............................ ..2 other Aathorlties jane B. Baron, .Rescuing the Bundle-of-Rights Metaphor in Property law, 82 U. CiDn. L Rev. 57 (2014) ................ --·--·········-··-······ .. ········-.. ·············--5 Keith CUDilingham-Parmeter, From.Amcmm to Uber: Defining EmplDyment fn die Modem Eamomy, 96 B.U. L. Rev. 1673 (2016)._._ ..... - ............. -4, 5, 6 Hi Equal Employment Opportunity Commission, EEOC Compliance Manual (May 12, 2000)._ .................................................... _ ................................... - .. 11 Equal Employment Opportunity Commission, Enforcement Guidance on Application ofEEO Laws to Contingent Workers Placed by Temporary Employment Agendes and other stafBng Firms, EEOC Notice Number 915.002 (Dec. 3, 1997) ...................................................................................... .11, 12 Arne L Kalleberg, Nonstandard Employment Relatior£ Part-Time, Temporary and Ccmtnlct Worlc, 26 Ann. R. Soc. 341 (2000) ... ---· ... - ................. - .... -4 Noah Zatz, Worldng Beyond the Reach or Grasp o{Employment Law, in The Glows-off Economy. Worltplace Stlmdtuds at the Bottom of Amerlal's Labor .Aitlrftet 31 (Annette Bernhardt et aL eds. 2008)-...................... ._ ........ - ..... 4, 5 fv INTEREST or AMia CURIAE Amid have no personal stake in the outcome of this case. Their interest is in assisting the parties and the Court In-the nature of in- direct employment arrangements and their signitlcance for identifJing an employer for purposes of liability under Exec. Law§ 296(15) ("§ 296(15)"), pertinent to the second certified question by the United States COurt of Appeals for the Second Circuit. Joining in this brief as amid are the follow- ing law professors, whose research and teaching have focused on labor and employment law: Eric M. Fink, Associate Professor of l.clw, Elon University School of Law, GreeDsboro, North caroUna Paul Secunda, Professor of Law and Director, Lahor and Employment law Pro- gram, Marquette University Law School Joseph E. Slater, !ugene N. Balle Professor of l.clw curd Values, University of Toledo COllege of Law (Additional names pending) 1 INTRODUCI'ION 6 SUMMARY OF A1tGUMEN'r This brief addresses the second question certified by the United States Court of Appeals for the Second Circuit: If section 296(15) is limited to an aggrieved part:ys "employer," what is the scope of the term "employer" for these purposes, i.e. does it include an employer who is not the aggrieved party's "direct em- ployer," but who, through an agency relationship or other means, exercises a significant level of control over the discrimination poli- des and practices of the aggrieved party's "direct employer"? Griffin v. Sirva, 835 F .3d 283, 294 (2d Cir. 2016). The statutory purpose of§ 296(15)-promoting employment opportuni- ties for ex-offenders by restricting the use of an individual's criminal his- toey as an employment aiterion-favors a construction that reaches those who, by virtue of a contractual or b1asfneR relationship with the direct em- ployer, have control over an individual's eligibility for employment. See Exec. Law § 290 (declaring purpose of the Human Rights Law); Exec. Law § 300 ('!he provisions of this article shall be construed Uberally for the ac- complishment of the purposes thereo£"); Cahill v. Rosa, 89 N.Y.2d 14, 20 (1996) ("Analysis starts by recognizing that the provisions of the Human L Amid c:arlae adopt, and Incorporate by reference, the statement of Facts and State- ment of the case in the Brief for Plaintiffs-Appellants. 2 Rights Law must be Uberally construed to accomplish the purposes of the statute"). This construction also accords with the economic reality of contempo- rary employment, which inaeasingly entails contractual or other indirect relationships where the traditional elements of employer control are dis- aggregated and shared among multiple entities. See Kaiser v. Rtloul~ Rest. Corp., 72 A.D.3d 539, 540 (1st Dep't 2010) (applying '"economic realit;y' test for determining who may be sued as an 'employer' under the Human Rights Law"), citing Patrowidt v Chemical Bank, 63 NY2d 541, 543 (1984); 0\fa- dia v Off. oflndus. Bd. of Appe41s, 19 NY3d 138, 143-44 (2012) (examining eco- nomic reality of parties' relationship to determine whether defendant is a joint employer under Lab. Law § 190). Where an entity enters into such an arrangement to ful611 its own workforce needs, and retains the power to exclude employees based on past criminal convictions contrary to § 296{15), it should be regarded as an indirect employer and held hable as such. 3 1. lndirec:t aad Ccmtingent Emp~ Arrangements are IDcreasiD&IY Common iD the Contempo1'817 Economy, ancl Raise substantial ConcerDs for Anti-DiscrJmiaatlon Law In the contemporary economy, •companies increasingly hire workers without offering them formal employment." Keith Cunningham-Parmeter, From Amazon to Uber. Defining Employment in the Modem Economy, 96 B.U. L Rev. 1673, 1683, 1727 (2016). A significant and growing segment of the workforce labors under "biangular" relationships, "git' work, and other indirect or contingent arrangements in which the set of rights and respon- sibilities associated with a traditional employment relationship are disag- gregated.Id. at 1673, 1682-88; Noah 2atz, Worlcing Beyond the Reach or GniSp of Employment Law, in The Gloves-Off Economy. Worlq.Jlace Standards at the Bot- tom of Amerfca's Labor Mar1cet 31, 37-42 (Annette Bernhardt et al. eds. 2008) (discussing disintegration of employment relationships mlCier workforce subcontracting and biangular arrangements): Arne L ICalleberg, Ncmstcm- dard Employment Relations: Part-Time, Temporary and Contract Work, 26 Ann. R. Soc. 341, 346-53 (2000) (discussing "extemalization of administrative con- trol and responsibilitY' through use of•employment intermediaries,. 4 As these arrangements have proliferated, the economic reality of em- ployment has grown to resemble the familiar conception of property as a "btmdle of rights" rather than a unitary thing. See Jane B. Baron, Rescuing the BuJulle..of-Rights Metaphor in Property Law, 82 U. Cinn. L. Rev. 57, 58-59 (2014). As with property, the various rights and corresponding responsi- bilities associated with being an employer may similarly be held by or shared among multiple persons. This case arises out of a "vertically disintegrated" employment arrange- ment. See Zatz, suprt~, at 37-38 (describing labor subcontracting as "vertical disintegration" of employment). One company (the "end user") needs workers to perform the labor essential to its business. Rather than hire those workers directly, the end-user contracts with another company (the "labor supplier") to supply them as needed. The labor supplier in turn hires workers and assigns them to jobs for the end-user. See Cunningbam- Parmeter, supra, at 1673, 1683, 1727 (describing triangular employment ar- rangements). The allocation of control and other rights among the parties is defined, at least in part, by the terms of the contract between the end- user and the labor supplier. 5 In applying § 296(15) such arrangements, the appropriate benchmark for identifying potentially liable parties is the underlying economic reality, not formalfstlc labels. The fact that a business outsources its own labor needs to another entity does not necessarily place it beyond the reach of employment laws like § 296(15). Rather, "businesses [in such arrange- ments] become employers when they meaningfully inftuence working con- ditions, even if layers of contractual relationships obscure that power." Cunningham-Parmeter, supra, at 1674. D. To Farther the Statutory Purpose oft lmfting the Use of CriiDiDa1 llistories to Disqualify IDdivicluals From Employm.eat, I 296(15) shoulciApply to -EIIIployers UDder the Human Rights Law Whose CoDtrad:ual or Business BelatioDSidp With the DJred E1Dployer Gives Them. Coatrol OVer a plaintflPs EBsfbllity for EmploJment. A. Indirect Employer Uabllft:y is a Well-Established Concept Under Federal and State Employment Discrimination Statutes Courts have long recognized that liability as an employer under the Hu- man Rights Law and sfmllar federal and state employment discrimination statutes "does not require a direct employer/employee relationship." Ship- Jrevich v. StatmlsLznd Univ. Hosp., No. 08-CV-1008 FBJMA, 2009 WL 1706590. at *3 (E.D.N.Y. june 16, 2009) (denying motion to dismiss where complaint 6 sufftdently alleged facts that would establish defendant as indirect em- ployer under Title VD and the Human Rights Law); accord, KDlDgy v. My Sptu:e NYC CArp., 177 F. Supp. 3d 778, 781 (E.D.N.Y. 2016) (same). For pur- poses of employment discrlmination liability, "the term 'employer' - [may] encompass any party who significantly affects access of any individ- ual to employment opportunities, regardless of whether the party may technically be desaibed as an •employer' - at common law." Matthews v. Hew Yorlc Life Ins. Co., 780 F. Supp. 1019, 1023 (S.D.N.Y.1992) (dtations omit- ted) (holding indirect employer may be liable under ntle VD and Human Rights Law for sexual harassment and retalfatory discharge by direct em- ployer who was an independent contractor of indirect employer). Where the direct and indirect employers are, both legally and in reality, separate entitles, they are commonly identified as joint employers. See Bnmlcov Y. Hazmrrl, 142 A.D.3d 445, 445-46 (1st Dep't 2016); FGUSh v. Tuesday Morning, Inc. 808 F .3d 208, 216 (3d Cir. 2015); Lima v. Addeco, 634 F. Supp. 2d 394, 400 (S.D.N.Y. 2009), aff'd sub nom. Lima v. Adea:o ~or Plat:JOrm 1aJmlng, Inc., 375 F. Appx 54 (2d Cir. 2010); Aradeo v. On-Site Sales & Marlceting, UC, 425 F .3d 193, 198 (2d Cir. 2005). A joint employer relationship may arise where "one employer while contracting in good faith with an otherwise in- 7 dependent company, has retained for itself suf&cient control of the terms and conditions of employment of the employees who are employed by the other employer." N.LRJJ. v. Browning-Ferris Indus. of Pennsylvania, Inc., 691 F .2d 1117, 1122-23 (3d Cir. 1982); see Arculeo, 425 F .3d at 198 (noting appli- cab~ of Browning-Ferris joint employer standard to Title VD); Gulino v. N.Y. State Edw:. Dep't, 460 F .3d 361, 378 (2d Cir. 2006) (noting application of joint employer theory to cases "where the plaintiff's employment is sub- contracted by one employer to another, formally distinct, entity"); Lima, 634 F. Supp. 2d at 400 ("The joint employer doctrine has been applied to - contractors and subcontractors ."where two separate entities have conJrol over an employee•s employment."). New York courts have applied the joint employer doctrine under other parts of the Human Rights Law. Stam Div. ofHuman Rights v. GTE Corp., 109 A.D.2d 1082. 1083 (4th Dep't 1985) (holding employment agency client is an employer for purposes of§ 296 sex and pregnancy discrimination claim by agency employee who worked for client); Maxwell v. N.W. Ayer, Inc., 159 Misc. 2d 454, 459-60 (Sup. Ct. N.Y. Cnty. 1993) (holding client of advertising agency may be liable for disability discrimination under § 296, where agency refused to hire plaintiff based on client's instructions); Bnmlcov, 142 8 A.D.3d at 445-46 (aftlrming dismissal of§ 296 employment discrimination claim against alleged joint employer, where record lacked evidence of de- fendanrs control over plaintiffs employment). Courts in other jurisdictions have likewise recognized that an indirect employer who controls relevant terms and conditions of employment may be liable under federal and state employment discrimination statutes. sdmeitler v. Regency Heights of WindJu.un, LLC, No. 3:14-CV-Q0217-V AB, 2016 WL 725667~ at *8-9 (D. Conn. Dec. 15, 2016) (Title VD and Connecticut Fair Employment Practices Act) (holding defendants aashould be considered joint employers because individuals &om the three corporations played in- tegral roles in [plaintiff's] termination and in employment decisions more generally"); Plaso v. I]lCG, U.C, 553 Fed. App'x 199, 204 (3d Cir. 2014) (New jersey Law Against Discrimination) (holding defendant not liable as joint employer where defendant lacked control over plaintiff's employment and played no role in alleged termination); Faush, 808 F .3d at 212-13, 215-20 (Pennsylvania Human Relations Act) (holding defendant's control over plaintiffs employment, including "ultimate control over whether [plain- tift] was permitted to work [for defendant]," could support finding that de- fendant was joint employer with direct employer); Myers v. Garfield, 679 F. 9 Supp. 2d 598, 609-11 (E.D. Pa. 2010) (Title VD and Pennsylvania Human Re- Jations Act) (holding plaintiff, employed by franchisee of defendant fran- chisor, stated claim against franchisor as joint employer, where complaint alleged franchisor exercised control over franchisee's employees); Butler v. Drive Auto. Indus. of Am., Inc., 793 F .3d 404, 414-16 (4th Cir. 2015) (Title VU) (holding defendant's "control over the terms of [plaintifFs] employment," including defendant's instructing direct employer to replace plaintiff, made defendant a joint employer); Richardson v. Century Produds, Inc., 163 F. Supp. 2d 771,776 (N.D. ohio 2001) (Title VD and Ohio anti-discrimination statute) (holding defendant's control over terms of plaintiffs job assign- ment by employment agency made defendant a joint employer with agency); Commodore v. Genesis Health Ventures, Inc., 63 Mass. App. Ct. 57, 61- 65, 824 N.E.2d 453, 456-59 (2005) (Title vn and Massachusetts anti-discrimi- nation statute) (holding nursing home owner, which contracted with inde- pendent company to manage its facility, could be held liable as joint em- ployer of contractor's employee); UniY. of Tccas at El Paso v. Ochoa, 410 S.W.3d 327, 333-35 (Tex. App. Z013) (Texas Commission on Human Rights Act) (holding universit;Ys control over plaintiff's job assignment by staff leasing company could support flndfng that university was joint employer 10 despite lack of common law relationship between university and plaintift) citing NME Hosps., Inc. v. Rennels, 994 S.W .2d 142, 144-45 (Tex. 1999). These decisions are consistent with the EEOC's interpretation of Title VD, which recognizes that indirect employers may be liable for their own -conduct toward workers formally employed by another en- tit:)' pursuant to a contractual mangement. See Equal Employment Oppor- tunity Commission, EEOC Compliance Manual § 2-m(B)(l)(a)(iii)(b) (May 12, 2000); Equal Employment Opportunity Commission. Enforcement Guid- ance on Application of EEO Laws to Contingent Workers Placed by Tempo- rary Employment Agendes and other StafBng Firms, EEOC Notice Number 915.002, Question 2(b) (Dec. 3, 1997) ("EEOC Enforcement Guidance"); id. at n. 16 (dtlng "cases tlndlng that a client of a stafBng Brm can qua1ffy as a joint employer of the worker assigned to it": Poff v. PrudenUaJ Insurance Co. of AmeriJ:a, 882 F. Supp.1534 (E.D. Pa. 1995); .Magnuson v. Peale Technical Ser- vfces, Inc., 808 F. Supp. 500, 508-10 (E.D. Va. 1992); Guemz v. TIShman East Re- alty, 52 Fair EmpL Prac. Cas. (BNA) 286 (S.D.N.Y. 1989); and EEOC v. Sage Re- alty, 5f11 f. Supp. 599 (S.D.N.Y. 1981)).1ndeed, the EEOC's guidance specffl- cally recognizes the Uability of an indirect employer under the exact cir- cumstances of this case: "A client that rejects workers for discriminatory 11 reasons is Hable either as a joint employer or third party interferer if it has the requisite number of employees to be covered 1mder the applicable anti-discrimination statute." EEOC Enforcement Guidance, Question 7(b). B. Joint Employer Lia&flfty Furthers die Purpose a(§ 291(15) By Preventing die Use ofmdirectEmploymentArnmgements CIS Cl Loophole to Evade the Statatory RestrfctlonAgafnst Denyi1lg Employment Opportanitles Based on Past Crimillal Convictions The predicate for liability as a joint employer is "the defendant's con- trol over the employee in setting the terms and conditions of the em- ployee's work." Brcanlcov v. Hazard, 142 A.D.3d 445,445-46 (1st Dep't 2016). courts will consider such factors as "commonality of hiring, firing, disci- pline, pay, insurance, records, and supervision." Id. Normally, "the extent of the employer's right to control the means and manner of the worker's performance is the most important factor." ld. But "[t]he indicia suggesting a conclusion of joint employment may vary depending on the purpose of the inquiry." An:aelo v. On-Site Sales & Marlceting, UC, 425 F.3d 193, 199-200 n.7 (2d Cir. 2005); Stjean v. Orient-Express Hotels, Inc., 963 F. Supp. 2d 301, 307 (S.D.N.Y. 2013); accord I.lmnpallas v Mini-Cfrc:ufts, Lab, Inc., 163 F3d 1236, 1244-45 (11th Cir 1998) ("the joint employer theory concentrates on the degree of control an entity has over the adverse employment decision on 12 which the - suit is based.") (dtation and internal quotation marks omit- ted). Section 296(15) restricts the use of a person's criminal record as a aite- rion for employment. Exec. Law § 296(15). A person covered by the statute may not disqualify someone from a job based on a past criminal conviction, unless they make the requisite showing under Article 23-A of the Correc- tionsi.aw: (1) There is a direct relationship between one or more of the previ- ous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of spedflc individuals or the general public. Correct. Law, Article 23-A, § 752. Accordingly, the relevant focus for a joint employer inquiry under§ 296(15) is the defendanrs control over the terms and conditions of eligibility for or access to an employment opportunity. The drcumstances in this case provide a good illustration. Allied Van Unes ("Allied") entered into a Contract with Astro Moving and Storage (" Astro'?, under which Astro provides moving and storage services as Al- lied's agent. Grif1in v. Slrva, 835 F .3d 283, 284 (2d Cir. 2016). 13 Id. In its agency contract with Allied, Astro agreed to require any em- ployees working on Allied jobs to undergo a criminal backgro1D'ld check. If an employee working on Allied jobs was found to have one of several serious criminal convictions on his or her record, Allied effectively prohibited Astro from allowing those employees to work on Allied jobs. If Allied had left it up to Astro to decide whether to saeen employees based on their criminal histories, then Allied would not be liable, as an em- ployer or otherwise, under § 291(15). Instead, Alliecf•s contract with Astro mandates criminal background checks and disqualifies anyone with cer- tain convictions from working on any Allied job. This is precisely the em- ployment practice that § 296(15) regulates. If a business opts to outsource its own labor needs while retaining control over the aiteria for job assign- ments, it should be bound by § 296(15), just as it would if it directly hired its own employees. 14 CONO.USION The purpose of§ 296(15) is to promote equal employment opportunity Cor individuals with past convictions. joint employer liab~ fUrthers that purpose and accords with the economic reality of indirect and contingent employment arrangements. Butler v. Drive Auto. Indus. of Am., Inc., 793 F .3d 404, 409 (4th Cir. 2015). A business may lawfully choose "to •outsource' its [labor] requirement[s] ... and seek, by outsourcing, an extra measure of efBdency and economy in providing an important and competitive service." An- soumarra v. Grfstede's Operating Corp., 255 F. Supp. 2d 184, 196 (S.D.N.Y.1998) (holdingjoint employer liable under Fair Labor Standards Act and N.Y. Lab. Law § 651). But it may not exploit such an arrangement as cover for dis- aiminatory employment aiteria it could not lawfully impose as a direct employer. Id.; accord State Dtv. of Human Rights v. GTE Corp., 109 A.D.2d 1082, 1083 (4th Dep't 1985); Matthews v. New Yorlc Life Ins. Co., 780 F. Supp. 1019, 1023 (S.D.N.Y.1992); Bader v. Drive Auto. Indus. of Am., Inc., 793 F .3d 404, 410 (4th Cir. 2015); Riduudson v. Century Products, Inc., 163 F. Supp. 2d 771, 776 (N.D. Ohio 2001). 15 Dated: New Yorlc, New York February 6, 2016 jotm Up n / 217 Broadway tl707 NewYork,NY10007 Tel.: (212) 233-9300 Attorney for Proposed Amid Cmiae Labor &c Employment Law Professors 16 CERTIFICATE OF COMPLIANCE Wl11l ZZ NYCIUt I 500.l3(c)(l) I hereby certify, pursuant to the Rules of Practice of the Court of Appeals, § S00.13(c)(1), that the foregoing brief was prepared on a computer using LibreOfBce s. Type. A proportionally-spaced typeface was used, as follows: Name of typeface: Gentium Basic Point size: 14 Une spacing: Double Word Court. 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 authorities, proof of service, and this Certiflcation, is 2926 Dated: New York, New York February 6, 2016 Attomey for Proposed Amid Curiae Labor • Employment Law Professors 1