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New York City Bans Discrimination Against the Unemployed

April 1, 2013

On March 13, 2013, the New York City Council enacted a law banning employment discrimination against the unemployed and prohibiting discrimination against the unemployed in job advertisements. By enacting this law, New York City joins a number of jurisdictions, including New Jersey, Oregon and the District of Columbia, which prohibit employers from discriminating against the unemployed. However, this law, which applies to employers with four or more employees, is considerably broader than many of the other laws and has significantly higher penalties for violations.

The new law applies to employers and employment agencies and prohibits them from basing an employment decision on an applicant's unemployment. They are similarly prohibited from publishing, in print or in any other medium, any job advertisement in New York City that provides that: (1) being currently employed is a requirement or qualification for the job; or (2) they will not consider individuals for employment based on their unemployment.

The law includes certain exceptions. An employer is permitted to consider an applicant's unemployment where there is a substantially job-related reason for doing so. An employer may also inquire into the circumstances surrounding an applicant's separation from prior employment. Further, an employer is not prohibited from considering only its current employees for a job vacancy, or giving priority to such individuals for employment, or publishing a job advertisement that states that only current employees of the employer will be considered for the position.

Unlike the 2011 New Jersey law discussed in our previous Employment Law Alert, the New York City law gives individuals who believe they have been discriminated against based upon their unemployment a private right of action for damages, injunctive relief and other appropriate remedies. Aggrieved individuals may also make a complaint to the New York City Commission on Human Rights (the “Commission”). In addition to providing an aggrieved individual with front pay and back pay, or compensatory damages, an employer found to have violated the law may be issued a “cease and desist” order from the Commission, and may be required to hire the aggrieved applicant.

An employer’s failure to comply with an order issued by the Commission could result in a civil penalty of up to $50,000, with additional civil penalties of up to $100 per day. Further, an employer can be penalized up to $250,000 if the Commission determines that the employer has engaged in the prohibited discrimination against the unemployed and the employer’s actions were determined to be “willful, wanton or malicious.” The law also imposes criminal sanctions. Any person who violates a Commission order may be found guilty of a misdemeanor punishable by up to one year in prison, a fine of up to $10,000, or both.

The law goes into effect on June 13, 2013. In light of the severe potential penalties, employers should review their current hiring policies and practices and, where necessary, revise such policies and practices to ensure equal treatment of unemployed applicants. Employers should also review and, where applicable, revise all job advertisements (whether published directly by the employer or by an employment agency) to ensure compliance. 

For more information, please contact:

Catherine P. Wells | Member of the Firm | (973) 530-2051 | cwells@wolffsamson.com

Margaret O'Rourke Wood | Member of the Firm | (973) 530-2063 | mwood@wolffsamson.com

Denise J. Pipersburgh | Associate | (973) 530-2090 | dpipersburgh@wolffsamson.com