On August 30, 2016, the Second Circuit United States Court of Appeals certified three questions to the New York State Court of Appeals to help them resolve a case where two former felons brought a wrongful termination action after they were fired when their employer discovered they were convicted felons. The suit was brought pursuant to a New York state statute which prohibits employment discrimination based on certain criminal convictions.

Trathony Griffin and Michael Godwin worked for Astro Moving and Storage Company, a subsidiary of Allied Van Lines. Astro's contract with Allied required all of Astro's employees undergo a criminal background check. Allied prohibited Astro from allowing workers with certain serious felony convictions from working on Allied jobs.

Griffin and Godwin signed forms to give Astro their consent to a background check in 2011. When Astro discovered that both Griffin and Godwin had been convicted of sex offense, Astro fired them.

The pair sued in federal court in New York for wrongful termination under N.Y. Exec. Law Sect. 290 et seq., and for violations of 42 U.S.C. Sect. 1981, the Fair Labor Standards Act, and New York Labor Law. The suit named Astro, Allied, and Allied's parent company, Sirva Inc.

On summary judgment, the district court dismissed Allied and Sirva from the case because they were not Griffin and Godwin's "direct employer" and therefore could not be held liable under N.Y. exec. Law Sect 206(15), a law that makes it unlawful for any employer to deny employment based on a conviction for certain criminal offenses. The pair appealed, and the case went up to the Second Circuit U.S. Court of Appeals.

However, instead of ruling on the case, the appellate court found it needed help interpreting New York state law in three areas: (1) Does Sect. 296(15) limit liability to an aggrieved party's "employer"? (2) If so, does the term "employer" include an employer who is not the aggrieved party's "direct employer"? (3) Can an out-of-state company that directs its agent company in New York State to discriminate on the basis of a felony conviction be held liable for the agent's violation of New York's Human Rights Laws?

These questions were certified to the New York Court of Appeals, which may expand the scope of the questions if it chooses. The Second Circuit will resume consideration of the appeal once it receives the response of the New York court. See: Griffin and Godwin v. Sirva Inc. and Allied Van Lines, No. 15-1307 (2d Cir. 8/30/2016).

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