Bernard Frechtman: New York City Severely Limits Employers’ Rights to Background Checks
A. Bernard Frechtman, Esq., C.P.C. - July 24, 2017
Note: This article is not intended as legal advice. In all instances the reader is cautioned to consult with legal counsel when utilizing this information. ABF*
New York City Severely Limits Employers’ Rights to Background Checks
Employers in New York City face restrictions on the types of information they can seek about prospective employees either through job applications, interviews, independent research or background checks. This is due to two new laws known as the Fair Chance Act, or “ban the Box Law” that became effective October 27, 2015, and the Stop Credit Discrimination in Employment Act, which took effect on September 3, 2015.
The Fair Chance Act prohibits employers with at least four employees from making an inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been extended. The New York City Commission on Human Rights has published a “Fair Chance Notice” that employers can use to comply with this requirement.
The Ban the Box Law requires that employers provide applicants with a written copy of their analysis and decision, in a specified format, and set forth a written explanation of the employer’s adverse employment action. Employers subject to the law must hold the position open and give the affected applicant three business days to respond to the employer’s adverse employment action.
California Adopts Stronger Equal Pay Protection
California officially amended its equal pay legislation through the California Fair Pay Act to include more employee friendly provisions. The most important aspect of the new law is that it changes the standard from “equal pay for equal work” to “equal pay for substantially equal work” based on the employee’s skill, effort and responsibility, and similar working conditions. The Act also includes enhanced anti-retaliation provisions intended to improve transparency about employees’ salaries. The new law takes effect on January 1, 2016.
Can An Employer Limit The Use Of A Foreign Language In The Workplace?
It is clear that an English-only rule adopted by an employer must be implemented for non-discriminatory reason. Furthermore prohibiting certain foreign languages and not all such languages is unlawful. The U.S. Equal Employment Opportunity Commission has issued guidance indicating that any such rules should relate to specific circumstances and can be justified by business necessity, such as in cases of emergencies, promoting efficiency or to monitor the performance of employees whose job duties require communication where a supervisor only speaks English.
Jersey City, New Jersey Expands Paid Sick Leave
On November 15, 2015 the Jersey City Council voted to expand the scope of the City’s existing sick leave ordinance. Under the Ordinance as amended, employers with less than 10 employees now will be required to provide employees with up to 24 hours of paid sick leave and up to 16 hours of unpaid sick leave per year. Small employers were previously required to provide employees with up to 40 hours of unpaid sick leave per year.
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