On March 13, 2013, the New York City Council passed a bill amending the New York City Human Rights Law to protect the unemployed. The new law goes into effect June 11, 2013 and generally prohibits discrimination based on an individual’s unemployment status and the posting of job advertisements requiring applicants to be employed.
The law defines “unemployment” as not having a job, being available for work and seeking employment. The law prohibits NYC employers (who have at least four employees) and employment agencies from basing an employment decision (such as hiring, compensation, or the terms, conditions or privileges of employment) on an applicant’s unemployment status. Additionally, the law prohibits employers and employment agencies from advertising a job vacancy that requires applicants to be currently employed.
The new law contains some exceptions. For example, the law does not prohibit a NYC employer from:
- considering an applicant’s unemployment where there is a “substantially job-related reason for doing so”;
- inquiring into the circumstances surrounding an applicant’s separation from prior employment;
- considering “substantially job-related qualifications,” which are defined as: 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;
- limiting the applicant pool, or giving priority, to employees currently working for that employer; and
- setting compensation or other terms/conditions of employment based on the applicant’s actual amount of experience.
The new law allows job applicants to bring an action against potential employers alleging unemployment discrimination. An individual who believes he has been discriminated against can file a lawsuit in court against a prospective employer for damages, injunctive relief, punitive damages and attorneys’ fees and costs, or can file a complaint directly with the New York City Commission on Human Rights. If a candidate files a complaint with the City Commission, the City Commission can order an employer to hire the aggrieved candidate and can impose penalties up to $250,000 per violation.
With NYC’s high unemployment rate, employers should be concerned that the new law will result in a flood of litigation – some likely (and unfortunately) baseless – by unemployed job applicants who do not receive job offers. To avoid potential liability and position themselves with the best-available defenses, employers should review their job postings and employment applications, hiring practices, and interview techniques to ensure they comply with this new law.