NYC Employers Can’t Refuse to Hire the Unemployed
The New York City Council on Mar. 13 passed a law forbidding employers from discriminating against job applicants who are unemployed. It is the first law in the country to provide a private cause of action for people who are refused employment because they lack a job.
Stop Kicking Those Who Are Down
The new law, Intro 814-A, allows rejected applicants to either sue the employer or report the discrimination to the New York City Commission on Human Rights, which could order the employer to stop discriminatory practices, require discriminated applicants be hired, and subject the employer to penalties for noncompliance.
Once the law takes effect, in mid-June, employers must have a “job-related” reason for making employment decisions; in other words, employers can consider “job-related qualifications” such as whether an applicant has the required license or other credential, a minimum level of education or training, or a minimum level of experience, according to the law.
It will also be illegal for job advertisements to require current employment or to say that unemployed applicants will not be considered for positions.
“We cannot – and will not – allow New Yorkers who are qualified and ready to work have the door of opportunity slammed in their faces,” said City Council Speaker Christine C. Quinn, a proponent of the law, in a statement released in January about the pending passage of the bill. “The long-term unemployed face some of the greatest challenges in their job searches.”
The law extends protection to workers who already enjoy protections for race, disability, religious observance, and whistleblower status, observes Charles Joseph, an employment lawyer with Joseph & Kirschenbaum LLP in New York City. He says the new law is “especially welcome in a down economy, but really anytime.”
“Most people lose a job at some point for no good reason,” he says. “The great majority of persons protected by the new law are as skilled, dedicated, and deserving of a job as employed people, [and] to weed them arbitrarily out on the basis [of] not [being] currently employed is not rational for an employer and not fair to the job seeker.”
“It’s bad enough they are unemployed — they shouldn’t lose twice by being effectively barred by the marketplace,” says Joseph. “And business will miss fewer good candidates if they look a little closer at people’s circumstances.” He adds that the law should provide welcome guidance for human resources professionals in the city.
Fear of Meritless Lawsuits
Others have pointed out a possible downside to the law – that employers might become even choosier about who they interview in the first place, making it even harder for people to find work.
New Jersey, Oregon, and Washington, D.C. each have laws forbidding jobs ads that require applicants to be employed, according to the National Conference of State Legislatures. But other states have rejected such proposals, including California, where in 2012 the governor vetoed a law passed by the legislature. New York City Mayor Michael Bloomberg, who reportedly tried to veto the New York City law, had warned of baseless lawsuits.
“These won’t be easy cases to win,” counters Joseph. “Ultimately the plaintiff will have to convince a finder of fact that he [or] she would likely have obtained the position had they not lost their previous job.” That will mean fewer lawsuits than the naysayers predict.
“Business cried the same tears on behalf of each step forward,” says Joseph, pointing to laws forbidding discrimination based on race and gender. “It has worked out the opposite way. Vulnerable people in the work place and job market have seen no decrease in hiring at the same time as they have gained more protection.”
President Obama is reportedly behind a similar law on the federal level.