New York City Council Overrides Mayor’s Veto of Statute Prohibiting Employers from Discriminating against the Unemployed

On March 13, 2013, the New York City Council, by a vote of 43 to 4, overrode Mayor Michael Bloomberg's February 22, 2013 veto of Local Law 14 of 2013 ("Local Law 14″ or the "Act").  Effective June 11, 2013, Local Law 14 prohibits any employer in New York City from basing an employment decision with regard to hiring, compensation, or the terms and conditions of employment "on an applicant's unemployment" without "a substantially job-related reason for doing so."

The Act amends section 8-102 of the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 - 8-131 (the "NYCHRL").

Local Law 14 subjects, to intermediate scrutiny, any decision of a business in New York City with respect to hiring, wages, or terms of employment which is based on the applicant not having a job.

Local Law 14 applies to any employer employing four or more employees (including individuals properly classified as independent contractors).  The new law will not apply to certain governmental agencies.

In addition to the above-mentioned "substantially job-related reason" exception, Local Law 14 sets forth three other exceptions to the Act's prohibiting of employers in New York City from basing hiring decisions on an applicant's unemployment.  Specifically, (i) an employer may "inquir[e] into the circumstances surrounding an applicant's separation from prior employment," (ii) an employer may "determin[e] that only applicants who are currently employed by the employer will be considered for employment or given priority for employment," and (iii) an employer may "set[] compensation or terms of conditions of employment based on . . . [a] person's actual amount of experience."

Apart from generally barring businesses in New York City from basing hiring decisions on the applicant's unemployment, Local Law 14 prohibits employers from publishing, in print or in any other medium, advertisements for any job vacancy in the City (i) stating that being currently employed is a requirement for the position or (ii) providing that an employer will not consider individuals for employment based on their lack of a job.

Individuals may enforce the new law by utilizing the existing enforcement procedures of the New York City Human Rights Law.

That is, Local Law 14 authorizes any applicant aggrieved by a hiring decision made based on the applicant's unemployment to file an administrative complaint with the New York City Commission on Human Rights or to file a civil action in a court of law.  In such a civil action, as in any action under the NYCHRL, punitive damages are unlimited; a prevailing party may recover his or her costs and reasonable attorney's fees; and not only the employer, but also individual employees or agents of the employer, may be held liable.

Take-Aways for Employers

Employers in New York City must review and revise their their present workplace policies, applications for employment, employee handbooks, and job advertisements to make clear that the employers do not discriminate in hiring, compensation, or the terms and conditions of employment based on an applicant's unemployment.  Further, employers in the City should train supervisors and managers concerning the employer's and the trainees' obligations not to base hiring decisions on an applicant's lack of a job.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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