Today’s New York employment law landscape is increasingly dynamic, with a constant stream of newly issued legislation and judicial opinions. To keep our readers current on the latest events, we share regular summaries of recent developments affecting Empire State employers. Here’s what happened during the period from July–September 2015:
NYC Agency Issues Guidance on New Credit Check Law
As we previously reported, a new law recently took effect in NYC that, subject to a few narrow exemptions, bars employers from requesting or considering, for employment purposes, a prospective or current employee’s “consumer credit history” (the Law). Now, the NYC Commission on Human Rights (NYCCHR), the agency tasked with enforcing the Law, has issued interpretive guidance that clarifies certain inherent ambiguities in the Law and constricts the already-narrow scope of the Law’s exemptions (the Guidance).
After briefly explaining the legislative intent behind the Law, the Guidance, which can be found here, quickly turns to the Law’s eight exemptions. Preliminarily, the NYCCHR notes that “[n]o exemption applies to an entire employer or industry. Exemptions apply to positions or roles, not individual applicants or employees.” Against this backdrop, the Guidance then effectively takes the narrowest possible view of each of the exemptions, cautioning further that employers bear the burden of proving that any claimed exemption is applicable. Beyond tightening the scope of the Law’s exemptions, the NYCCHR also takes the position that employers availing themselves of any exemption should inform affected applicants and employees of such exemption and also maintain an “exemption log” for five years from the date an exemption is used. The Guidance then proceeds to list eight pieces of information that should be included in such logs.
The NYCCHR closes the Guidance by reiterating the consequences of non-compliance, which include the broad remedies permitted by the NYC Human Rights Law (e.g., back and front pay, compensatory and uncapped punitive damages), as well as civil penalties of up to $250,000 for violations that are the result of willful, wanton, or malicious conduct.
Given the myopic view of the Law the NYCCHR has expressed in the Guidance, an immediate review of existing policies and procedures regarding credit checks – as well as of job positions to determine which are exempt under the Law – is a must for employers that perform credit checks on job candidates and/or current employees. Continue Reading