The presidency may be a politically elected position, but it is nonetheless a job and the campaign process is like one giant and prolonged job interview. Millions of bosses — voters — use information gathered during the campaign to make an informed decision about who to hire — i.e. elect — as president. Once elected, the president’s acts and performance are not without review. Congress may impeach for “high crimes and misdemeanors” and law enforcement may prosecute where there is evidence of a crime.

In the private sector, employers use the interview process to evaluate candidates for a job. Employers may ask many questions to a candidate during the application process, and employers expect honest and truthful answers to their questions. Businesses make decisions about who to hire after carefully reviewing, among other things, the applicant’s answers to the employer’s questions from the interview process. Although many states are at-will employment states, meaning employees can be hired or fired for any lawful reason, many employers nonetheless will investigate suspicions of employee misconduct before terminating the employee.

The so-called Russia Investigation resembles, in many ways, an employment investigation. Congressional investigation as well as Special Counsel Mueller’s investigation are looking into whether the Trump campaign acted improperly during the campaign. In other words, they are investigating whether President Trump’s team did something improper to get Trump the job of president.

Similarly, in private sector employment, a common problem encountered by employees is getting caught for using improper means to obtain a job. In private employment, this usually means lying on an employment application or on a resume. Sometimes, employees will get a little too creative with a resume and embellish responsibilities held in previous positions. Other times, employees may outright falsify prior jobs.

The most common of these application problems seen by the Long Island employment law firm, Famighetti & Weinick, PLLC, is that employees convicted of crimes will find trouble when completing applications asking for conviction history. Some areas of the country are instituting “ban the box” legislation which prohibits asking about conviction history on applications, and many more prohibit discrimination based on criminal conviction history. But, where the question is permissible, applicants with criminal conviction histories will often omit some convictions or otherwise try to conceal the nature of the history.

If the employer later learns that the employee was not truthful about disclosing a criminal conviction, the employee may lawfully be terminated for lying on the employment application. In other words, even though it may be unlawful to terminate the employee because of the fact that he or she has a particular criminal conviction, if the true reason the employer is terminating the employee is that the employee lied on the application, then there is a legitimate and legal reason to fire the employee. So, the lesson is, like running for president, when applying for any job, the applicant should be as truthful and honest as possible.

If you’re following the Special Counsel’s Russia investigation, then you also probably know that one of the key questions discussed by commentators is whether President Trump will meet with the Special Counsel to answer questions. One of the main reasons that the president likely does not want to speak to the Special Counsel, is that in speaking to him, he may be implicating himself in further misconduct. For example, former National Security Advisor, Michael Flynn, was interviewed by the FBI and subsequently indicted. Flynn, however, was not indicted for anything which was the subject of the FBI investigation. Rather, Flynn was indicted for allegedly making false statement during the FBI interview. Similarly, President Clinton faced impeachment for, among things, making false statements during a deposition. President Trump may want to avoid the pitfalls found by Flynn and Clinton.

In employment, employers may also conduct investigations which include questioning employees. Sometimes, the interviewed employee will not even know the subject matter of the investigation about which he or she is being interviewed. Like presidents and other high ranking government officials, employees may knowingly or unknowingly provide false statements during an investigation. Although the employee may not have done anything else improper, and if the employee was the subject of the investigation, he or she may even be exonerated for the alleged misconduct which sparked the investigation, but he or she may still face termination for not being truthful to investigators.

In sum, the Russia Investigation teaches us that the most important lesson in employment law is to be truthful. At Famighetti & Weinick PLLC, we spend a lot of time preparing our employment discrimination clients for depositions, trials, hearings, and mediations. Without question, the one point we make clear to our clients is to be truthful. Veering from the truth means only trouble.

If you have questions about the employment law topics discussed in today’s employment law blog about lessons from the Russia Investigation, contact one of our Long Island employment lawyers at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

The facts below are taken from the cases Griffin v. Sirva, Inc. decided by the Second Circuit Court of Appeals and the New York Court of Appeals.

Griffin v. Sirva

The employees in Griffin worked for Astro Moving and Storage, which provided moving and storage services for Allied Van Lines. Allied is essentially owned by various “Sirva Companies.” Allied required Astro to perform criminal background checks for all of its employees which would perform work for Allied. Employees with “serious criminal convictions” were prohibited from working on Allied jobs.

The Griffin employees consented to background checks which revealed that the employees were convicted of felony sexual offenses. Astro then terminated the Griffin employees who sued Astro, Allied, and Sirva.

Criminal Conviction Discrimination Law in New York

New York law prohibits public and private employers from denying employment to any individual who has been previously convicted of a criminal offense. The law makes two exceptions: (1) where the crime has a direct relationship to the employment, or (2) where the employment would create an unreasonable risk to safety or property. If an employer relies on the “unreasonable risk” exception, it must consider eight factors established by the Corrections Law. Failing to do so constitutes a violation of the Corrections Law.

In Griffin, the court was confronted with the question of whether Allied and Sirva could be liable, since the employees did not work directly for them. The Second Circuit decided it could not decide the issue because the New York law was unsettled. So, it certified three questions to the New York Court of Appeals:

1. Does the New York State Human Rights law limit liability to the “aggrieved person’s employer?”
2. If so, what constitutes an employer?
3. Can out-of-state corporations be liable for “aiding and abetting” criminal conviction discrimination within New York?

New York Court of Appeals Decides

On the first question, the Court of Appeals reviewed the two applicable statutes: The Human Rights Law and the Correction Law. The court found significant language in the Correction Law which prohibits conduct of “public or private employers,” noting the language targets employers. The statute’s language also states that liability arises when an application is made “at” an employer. The court concluded that the employment must relate to a specific employer. Taken all together, the Court of Appeals decided that criminal conviction discrimination applies only to an individual’s employer.

Next, the Court of Appeals had to decide what constitutes an employer, specifically, whether the agency relationship in Griffin constituted an employer. For this question, the Court of Appeals decided that the common law definition of employer applies. The Court noted four factors: (1) selection of the servant; (2) payment of salary; (3) power to terminate; and (4) level of control over the servant. Court further noted that “right of control” is the essential factor.

Finally, the Court had to decide whether an out-of-state corporation which is not an “employer” under the law can be liable for criminal conviction discrimination for aiding and abetting discrimination. Here, the Court decided that the Human Rights Law applies to out-of-state defendants because so that New York residents are protected from discrimination within the State. The Court of Appeals easily held that out-of-state corporations may be liable as aiders and abettors because it applies to all “persons” and is not limited to employers.

Criminal Conviction Discrimination Lawyers on Long Island

Famighetti & Weinick PLLC are attorneys on Long Island who handle cases of criminal conviction discrimination in New York. If you have questions about criminal conviction discrimination, the Griffin decision, or the New York Human Rights Law, call 631-352-0050 to speak a Long Island employment lawyer or visit our website at https://www.linycemploymentlaw.com.