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In-House Lawyers: Know These Recent NYC Employment Laws

By Jonathan R. Tung, Esq. on December 23, 2015 | Last updated on March 21, 2019

The legal landscape of New York City employment law has been changing recently and in-house would do well to take the time to become apprised of the more important (and potentially dangerous) laws.

It's all part of a push to reduce unfair discrimination while at the same time getting the "unemployable" back to work. Still, it can be a killer for employers who aren't careful.

SCDEA

New York recently passed the Stop Credit Discrimination in Employment Act (SCDEA) in early September. The act prohibits public agencies from requesting an applicant's credit history for the purposes of licensing or permitting. The same goes with information contained within an applicant's credit report, if known.

Fair Chance Act

SCDEA is an attack on the public front. But what about the private front?

The NYC law that employers should be wary of is Local Law No. 63, more generally known as the Fair Chance Act. It is essentially a limitation on how employers may inquire into the potential criminal histories of applicants who seek employment. In-house should counsel the appropriate personnel (especially HR) about what the law is, and how it should be complied with.

Local Law No. 63: The Guts

FCA or, better yet -- "63" -- applies to pretty much any employer within NYC with four or more employees. Such employers may not inquire into an applicant's criminal history before having extended that applicant a conditional offer after having reviewed his materials before making the criminal background history inquiry. For clarity's sake, this means that in-house counsel should essentially forbid any inquiries by HR of criminal background until the applicants basic materials have been first looked at.

"Ban the Box"

This also means that any form inquiry asking about the applicant's prior criminal history should be removed from any application forms immediately.

Independent Contractors = Employees

In-house counsel seeking to shield their company from lawsuits by advising the exclusive hiring of independent contractors will be sorely disappointed. For purposes of the Act, Independent contractors are treated as employees.

Procedure Must Be Observed

Employers are also in potential violation of 63 if the take an "adverse employment action" (i.e., not hiring the applicant) based upon the applicant's arrest record, criminal accusations against him, or criminal convictions without first following proper procedure

In order to be compliant with 63, employers who wish to take an adverse action based on a prior criminal history must do two very important things. They must...

  • present a copy of the applicant's criminal background history to the applicant himself
  • analyze the applicant's criminal history under 23-A of New York Correction Law.

23-A New York Correction Law Factors

23-A requires employers to consider eight factors when undergoing an analysis of the applicant's criminal history and suitability for the job. Only after first going through those factors may an employer make an adverse decision not to hire the applicant, with the reasons memorialized in writing, sent to the applicant himself. In the meantime, the position must be left open for three days to let the applicant respond.

Steps for In-House

Educate your company. New York City is particularly maze-like in its employment laws and 63's scope captures the grand majority of employees in the city. Remove "box" questions asking about the applicant's criminal history from all forms. Research the eight 23-A factors and be sure to inspect letters of adverse decisions before they're sent out.

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