NYC Bans “Unemployment” Discrimination – What Does This Actually Mean for Employers?

“New York City will soon become one of only a handful of jurisdictions prohibiting discrimination on the basis of ‘unemployment’ status and, in doing so, has adopted arguably the most stringent such law in the United States.” (Ogletree Deakins)

Earlier this month, the New York City Council amended the city’s Human Rights Law to include a ban on discrimination against job applicants based on their unemployment status. The bill, known as “Local Law 14,” was vetoed by Mayor Bloomberg in late February before being overwhelmingly approved by the council in a 43-4 vote.

What does the new law mean for employers in the city? Some answers, from JD Supra contributors:

What exactly does the new law prohibit?

“Employers are prohibited from basing employment decisions related to ‘hiring, compensation or terms, conditions or privileges of employment of an applicant’s unemployment,’ unless ‘there is a substantially job-related reason for doing so.’ Employers are also prohibited from publishing, in print or any other medium, any advertisement for any job vacancy in New York City that contains any statement or indication ‘that being currently employed is a requirement or qualification for the job,’ or that the employer will not consider candidates ‘based on their unemployment.’” (Cullen & Dykman)

Who is required to comply?

“The new law … applies to all non-public employers with four or more employees, all employment agencies, and their agents (Covered Entities).” (Ogletree Deakins)

Which employers are exempt?

“Local Law 14 does not apply to most public employers when acting pursuant to the Civil Service Law. It also does not apply to ‘the exercise of any right of an employer or employee pursuant to a collective bargaining agreement.’ (Cullen & Dykman)

Are there exceptions to the new law?

“The law includes certain exceptions and examples of situations that would not be considered violations. For example, employers, employment agencies, and their agents may lawfully:

  • Consider an individual’s unemployment where there is a ‘substantially job-related reason for doing so,’ and may consider the ‘circumstances surrounding an applicant’s separation from prior employment.’ …
  • Base decisions on, or post advertisements identifying, ‘substantially job-related qualifications’ …
  • Limit the applicant pool to only those currently working for that employer; and
  • Set compensation or terms and conditions of employment based on the person’s actual amount of experience.” (Mintz Levin)

What can happen to employers who violate the law?

“The new Local Law … allows two avenues of recourse for a person alleging an unlawful discriminatory practice:

  • file a complaint with the Commission within one year of the alleged unlawful discriminatory practice, or
  • initiate a civil action (which the Commission also may initiate on the aggrieved person’s behalf) in a court of competent jurisdiction within three years of the alleged unlawful discriminatory practice.

If an aggrieved person brings a complaint with the Commission, it may award remedies including but not limited to a ‘cease and desist order;’ hiring, reinstatement or upgrading of employees; front and back pay; and compensatory damages. In addition, the Commission may impose a civil penalty of no more than one hundred and twenty-five thousand dollars, unless the unlawful discriminatory practice was the result of a ‘willful, wanton or malicious act,’ in which case the penalty may amount to no more than two hundred and fifty thousand dollars.” (Proskauer)

When does the new law take effect?

“The New York City Council has once again acted to expand the nation’s broadest anti-discrimination law — this time to prohibit discrimination against New York City’s unemployed. The law will go into effect on June 11, 2013.” (Mintz Levin)

What can employers do now to prepare for implementation?

“… employers and employment agencies in New York City should omit any reference to ‘unemployment’ status in advertising materials and job application forms. Despite the available exceptions, ‘unemployment’ status should be avoided during job interviews and the hiring process, just as New York City employers should avoid any discussion with job applicants regarding their race, gender, national origin, age, disability, marital status, citizenship status, and sexual orientation. Employers may also wish to consider exhausting all internal candidates for job openings prior to public postings, because internal hires would likely obviate any potential liability.” (Ogletree Deakins)

What’s going on in the rest of the country?

“The new Local Law joins a growing number of laws and proposed laws to prohibit or limit discrimination against the unemployed. Indeed, New Jersey, Oregon and Chicago all have outlawed advertisements that state the unemployed need not apply. And, in addition to an advertisement ban, the District of Columbia has more broadly forbid (with exception) the consideration of an applicant’s unemployment status in adverse hiring decisions. Over the last couple of years, bills containing some form of ban on ‘unemployment discrimination’ also have been proposed in the U.S. Congress and a number of state legislatures, including the New York State Assembly and Senate.” (Proskauer)

The updates:

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