Provided by: Judge Ruth B. Kraft      

 

Reminder for companies with NYC-based workers!  The New York City anti-discrimination law, expanding the  class of covered workers to include the unemployed, becomes effective on June 11, 2013.  This is the broadest law of its kind in the country because it will permit unemployed individuals who believe that they have been discriminated against on the basis of employment status to sue for compensatory and punitive damages, plus attorneys’ fees.
 
If you are among the employers affected by this statute, it is imperative that you educate all staff involved in the recruiting and hiring process about this issue.  Employers must train interviewing staff members not to ask prohibited questions and how to frame questions in compliance with the law. 

  • Do not ask applicants how long they have been out of work.
  • Do not inquire about the reason for a prolonged absence from the workplace.
  • Focus on how the previous employment ended.
  • Focus on whether the candidate has the skills, experience or training for the proposed position.
  • Stick to qualifications, not social history.
  • Complete applicant assessment forms and document the basis for hiring or declining to hire in compliance with the law. 
  • Inform recruiters or employment agencies that they may not limit the applicant pool to the currently employed.
  • Check your want ads for compliance.  Do not use the phrase “recent experience necessary”.
  • Make sure that, if candidates can apply online, that you do not screen out those who fail to enter current employment data.

 
The NYC Human Rights Commission will scrutinize employment decisions based on the foregoing.  Although employers may consider unemployment when there is a “substantially job-related reason for doing so”, this will not afford you a blanket exemption.  You may consider the circumstances surrounding a prior separation from employment, such as whether it resulted from misconduct or poor performance, but there is a fine line to be drawn here and I expect the HRC to interpret borderline cases to the detriment of employers.


 
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.