Int. No. 814-A
By Council Members Comrie, Gentile, the Speaker (Council Member Quinn), Barron, Cabrera, Chin, Dickens, Dromm, Eugene, Ferreras, Gonzalez, Jackson, James, Koo, Koppell, Lander, Levin, Palma, Reyna, Rose, Vann, Williams, Rodriguez, Foster, Arroyo, Van Bramer, Vacca, Mark-Viverito, Garodnick, Brewer, Wills, Koslowitz, King, Lappin, Gennaro, Ulrich and Mealy
A Local Law to amend the administrative code of the city of New York, in relation to prohibiting discrimination based on an individual's unemployment.
Be it enacted by the Council as follows:
Section 1. Subdivision 5 of section 8-102 of chapter one of title eight of the administrative code of the city of New York, as amended by local law 39 of 1991, is amended to read as follows:
5. For purposes of subdivisions one, two, [and] three, subparagraph one of paragraph a of subdivision twenty-one, and paragraph e of subdivision twenty-one of section 8-107 of this chapter, the term "employer" does not include any employer with fewer than four persons in his or her employ. For purposes of this subdivision, natural persons employed as independent contractors to carry out work in furtherance of an employer's business enterprise who are not themselves employers shall be counted as persons in the employ of such employer.
§2. Section 8-102 of chapter one of title eight of the administrative code of the city of New York, as amended by local law number 36 for the year 2011, is amended by adding a new subdivision 27 to read as follows:
27. The terms "unemployed" or "unemployment" shall mean not having a job, being available for work, and seeking employment.
§3. Section 8-107 of chapter one of title eight of the administrative code of the city of New York, as amended by local law number 39 for the year 1991, is amended by adding a new subdivision 21 to read as follows:
21. Employment; an individual's unemployment. a. Prohibition of discrimination based on an individual's unemployment.
(1) Except as provided in paragraphs b and c of this subdivision, an employer, employment agency, or agent thereof shall not base an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant's unemployment.
(2) Unless otherwise permitted by city, state or federal law, no employer, employment agency, or agent thereof shall publish, in print or in any other medium, an advertisement for any job vacancy in this city that contains one or more of the following:
(a) Any provision stating or indicating that being currently employed is a requirement or qualification for the job;
(b) Any provision stating or indicating that an employer, employment agency, or agent thereof will not consider individuals for employment based on their unemployment.
b. Effect of subdivision. (1) Paragraph a of this subdivision shall not be construed to prohibit an employer, employment agency, or agent thereof from (a) considering an applicant's unemployment, where there is a substantially job-related reason for doing so; or (b) inquiring into the circumstances surrounding an applicant's separation from prior employment.
(2) Nothing set forth in this subdivision shall be construed as prohibiting an employer, employment agency, or agent thereof, when making employment decisions with regard to hiring, compensation, or the terms, conditions or privileges of employment, from considering any substantially job-related qualifications, including but not limited to: a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience.
(3) Nothing set forth in this subdivision shall be construed as prohibiting an employer, employment agency, or agent thereof from publishing, in print or in any other medium, an advertisement for any job vacancy in this city that contains any provision setting forth any substantially job-related qualifications, including but not limited to: a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience.
(4)(a)Nothing set forth in this subdivision shall be construed as prohibiting an employer, employment agency, or agent thereof, when making employment decisions with regard to hiring, compensation, or the terms, conditions or privileges of employment, from determining that only applicants who are currently employed by the employer will be considered for employment or given priority for employment or with respect to compensation or terms, conditions or privileges of employment. In addition, nothing set forth in this subdivision shall prevent an employer from setting compensation or terms or conditions of employment for a person based on that person's actual amount of experience.
(b) For the purposes of this subparagraph, all persons whose salary or wages are paid from the city treasury, and all persons who are employed by public agencies or entities headed by officers or boards including one or more individuals appointed or recommended by officials of the city of New York, shall be deemed to have the same employer.
c. Applicability of subdivision. (1) This subdivision shall not apply to: (a) actions taken by the New York city department of citywide administrative services in furtherance of its responsibility for city personnel matters pursuant to chapter thirty-five of the charter or as a municipal civil service commission administering the civil service law and other applicable laws, or by the mayor in furtherance of the mayor's duties relating to city personnel matters pursuant to chapter thirty-five of the charter, including, but not limited to, the administration of competitive examinations, the establishment and administration of eligible lists, and the establishment and implementation of minimum qualifications for appointment to positions;
(b) actions taken by officers or employees of other public agencies or entities charged with performing functions comparable to those performed by the department of citywide administrative services or the mayor as described in paragraph one of this subdivision;
(c) agency appointments to competitive positions from eligible lists pursuant to subsection one of section sixty-one of the state civil service law; or
(d) the exercise of any right of an employer or employee pursuant to a collective bargaining agreement.
(2) This subdivision shall apply to individual hiring decisions made by an agency or entity with respect to positions for which appointments are not required to be made from an eligible list resulting from a competitive examination.
d. Public education campaign. The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employment agencies, and job applicants about their rights and responsibilities under this subdivision.
e. Disparate impact. An unlawful discriminatory practice based on disparate impact under this subdivision is established when: (1) the commission or a person who may bring an action under chapter four or five of this title demonstrates that a policy or practice of an employer, employment agency, or agent thereof, or a group of policies or practices of such an entity results in a disparate impact to the detriment of any group protected by the provisions of this subdivision; and (2) such entity fails to plead and prove as an affirmative defense that each such policy or practice has as its basis a substantially job-related qualification or does not contribute to the disparate impact; provided, however, that if the commission or such person who may bring an action demonstrates that a group of policies or practices results in a disparate impact, the commission or such person shall not be required to demonstrate which specific policies or practices within the group results in such disparate impact; provided further, that a policy or practice or group of policies or practices demonstrated to result in a disparate impact shall be unlawful where the commission or such person who may bring an action produces substantial evidence that an alternative policy or practice with less disparate impact is available to such entity and such entity fails to prove that such alternative policy or practice would not serve such entity as well. A "substantially job-related qualification" shall include, but not be limited to, a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience.
§4. This local law shall take effect ninety days after it shall have been enacted into law.
------
JEB
LS #2928
1/15/13
6:17 PM