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Will NYC’s Unemployment Discrimination Law Affect Hiring Practices Nationally?

Posted on: August 19th, 2013 | Category: Government Regulatory & Compliance Issues, hiring process, Interviews, Legal Issues When Hiring, Our Blog

NYC's unemployment discrimination lawOur last summer article in our “Look at These Laws!” series takes us to the Big Apple. Recently, New York City enacted a law designed to protect unemployed job seekers from discrimination by employers. The amendment to the New York City Human Rights Law (NYCHRL) is the first law in the United States to define a job applicant’s unemployed status as a protected class along with age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation and citizenship/alienage status. By treating unemployed applicants in the same way members of other protected classes are treated under nondiscrimination laws, the amendment provides plaintiffs with the right to pursue private civil claims.

So, how does this affect NYC hiring managers, and will similar laws become commonplace around the United States?

Great question! Glad you asked it. According to the Society for Human Resources Management (SHRM), companies in New York City will need to be careful when asking some fairly traditional job application or interview questions. Things that can get you into hot water include:

  • Directly asking about an applicant’s current employment status.
  • Inquiring about issues related to employment gaps found on his or her resume.
  • Talking about  an applicant’s lack of recent experience.
  • Asking an unemployed applicant to talk about circumstances surrounding his or her departure from a previous job.

SHRM has a great resource for employers in the Big Apple trying to navigate the new legislation. The article also points out the organization has about the loosely worded nature of the law:

Although well-intentioned, New York City’s unemployment discrimination law fails to provide enough guidance to employers and is so broadly worded and far-reaching that it may lead to even more inefficiencies in the workplace from employers who may feel unable collect legitimate and relevant information about unemployed applicants regarding employment gaps or the circumstances regarding terminations from previous jobs. It also may prevent an employer –even in rapidly changing industries– from hiring an applicant with more recent experience where he or she is competing with an unemployed applicant with less recent, but more overall, experience.

It may be difficult for employers to distinguish legitimate hiring practices from ones that could result in unfair discrimination against an unemployed applicant. Until sufficient case law or statutory amendments clarify the boundaries of protection for unemployed job applicants, New York City employers will face a great deal of uncertainty surrounding the hiring process of employed vs. unemployed job applicants.

Other Places and Unemployment Discrimination Laws

New Jersey, Oregon and the District of Columbia all have passed limited legislation that bars employers from publishing advertisements that solicit applications only from employed candidates, according to SHRM. Maryland, Colorado and over a dozen states across the country are now contemplating enacting similar laws. “Keeping up on the news regarding any discrimination law is wise,” says Kelly Coblentz, PHR, Director of HR Services for hireVision Group. “This summer alone we saw several Supreme Court rulings that affect how employers not only during the hiring process, but in day-to-day employee relations and human resources functions as well.”

HR issues have you stumped?

Benefits and compliance. Performance and retention. Hiring and training. HR encompasses so much of what makes your business run smoothly, successfully and profitably. Email or call us at 610-443-0119 to discuss how hireVision’s HR Partnering Services can help your bottom line.

This article is part of our “Look at These Laws!” series, where we highlight some major legal and compliance issues facing businesses right now, and we strongly encourage you to check back weekly (or sign up for our new blog article email alerts) to keep yourself abreast of this important information.


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