On March 13, 2013, the New York City Council overrode Mayor Bloomberg’s veto of a bill prohibiting employers from discriminating on the basis of a job applicant’s unemployment status. Employers need to become familiar with the law and take steps to ensure compliance; job seekers should be aware of these new limits on employment decisions.
The new law, which becomes effective in New York City on June 11, 2013, amends the New York City Human Rights Law and is one of the toughest anti-unemployment laws in the country. The text of the law can be accessed here. Specifically, it prohibits an employer from basing an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on the basis of “unemployment”, which is defined as meaning “not having a job, being available for work, and seeking employment.”
The law excepts from the prohibition and thus allows employment decisions to be based on “substantially job-related qualifications, including but not limited to: a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience.”
The law also prohibits policies or practices that have a disparate impact on the unemployed unless an employer proves “that each such policy or practice has as its basis a substantially job-related qualification or does not contribute to the disparate impact.” Even if an employer successfully establishes that the policy or practice has as its basis a substantially job-related qualification, an aggrieved person or the New York City Commission on Human Rights can still prevail if it "produces substantial evidence that an alternative policy or practice with less disparate impact is available to such entity and such entity fails to prove that such alternative policy or practice would not serve such entity as well."
The law gives aggrieved applicants the right to file discrimination charges with the New York City Commission on Human Rights or privately sue the prospective employer in court. Employers who are found to have violated the law can face significant liability, including front pay, back pay, attorney’s fees and punitive damages. The Commission can also impose civil penalties of up to $250,000 per violation.
Protective Action for Employers
To avoid costly litigation and improve the odds of success if a case is brought, an employer should take the following protective steps:
Review all help-wanted advertisements to ensure that they do not discriminate against the unemployed.
Review hiring policies and practices to ensure that they are in compliance with the new law and make sure those policies and practices are followed by those responsible for hiring.
Make sure that the individuals responsible for hiring are well-versed in the new law as well as the employer’s hiring policies and practices.
Freeman Lewis LLP is available to assist you with any questions regarding the new law or any other employment related matter.
Freeman Lewis LLP is a boutique firm focusing on employment law, victims' rights, securities arbitration, white-collar criminal law, commercial litigation, and ERISA litigation. For more information, visit http://www.freemanlewis.com.