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THE REPACKAGED TRAVEL BAN FACES NUMEROUS OBSTACLES

 

In previous blog posts, we have kept you abreast of developments concerning President Trump’s Executive Order on the travel ban.

 

Hawaii became the first state to file a lawsuit against what I call President Trump’s ‘repackaged’ travel ban.

 

Last week, attorneys for Hawaii filed a 40-page request asking a federal judge to issue a temporary restraining order blocking implementation of the new travel ban, which bans foreign nationals from six Muslim-majority countries from entering the United States for 90 days, and bans all refugees for 120 days. Hawaii argues that the new Executive Order is “resulting in the establishment of religion in the state of Hawaii contrary to its state constitution; it is inflicting immediate damage to Hawaii’s economy, educational institutions, and tourism industry; and it is subjecting a portion of the state’s citizens to second-class treatment and discrimination.”

 

In a 43-page ruling, US District Court Judge Derrick Watson, who presides in Honolulu, concluded in no uncertain terms that the new executive order failed to pass legal muster at this stage and the state had established “a strong likelihood of success” on their claims of religious discrimination.

 

A federal judge in Maryland also specifically blocked the 90 day ban on immigration for citizens of the six Muslim majority countries.

 

Both the Hawaii and Maryland judges cited President Trump’s statements about Muslims during the presidential campaign as part of their rulings.
White House press secretary Sean Spicer confirmed that the Trump administration plans to appeal rulings from the Hawaii and Maryland federal judges that have temporarily blocked the ‘revised’ travel ban.
Meanwhile, Senate Democrats introduced legislation-spearheaded by Senator Chris Murphy (D-CT)-to undercut President Trump’s new EO by withholding funding to enforce it. The bill would reportedly also state that the EO violates the Immigration and Naturalization Act (INA), which bans discrimination against immigrants based on what country they come from. Democrats would need 60 votes for the bill to clear the Senate, which would require the support of at least a dozen GOP senators.

 

Keep visiting this page to learn about new developments concerning the travel ban.

VIDEO SURVEILLANCE OF EMPLOYEES

 

In the US, we know we are being constantly surveilled, as we go about our lives. The average American is apparently caught on a surveillance camera more than 75 times a day.

 
Let’s talk about surveillance in the workplace, where many Americans spend the majority of their waking hours—fortunately or unfortunately. Can you, as an employee, enjoy special protections against surveillance at work?

 
Probably not, unless you are a current or prospective union member. If you are a current or prospective union member, then pursuant to the National Labor Relations Act (NLRA), your employer is prohibited from employing video surveillance in a way that is meant to intimidate you from exercising your federal rights.

 
If you are participating in union organizing activity on behalf of a group of employees, under the NLRA, your employer may not monitor or record these activities, because the National Labor Relations Board (NLRB) views that as intimidating or deterring employees from exercising their federal rights.

 
What if you work for a governmental employer? Said employer must ensure that it complies with the 4th Amendment and 14th amendment protections against unreasonable searches and seizures. Monitoring of an employee by a governmental employer could be considered an illegal search or seizure if it extends into places where an employee would have a reasonable expectation of privacy.

 
What if you’re not a current or prospective union employee, and you work for a private, non-government employer? Then, just understand that you don’t have a general reasonable expectation of privacy on the job, since the workplace doesn’t belong to you—it belongs to your employer. That doesn’t mean there aren’t limits though—states have placed their own limits on video surveillance.

 
In New York State, a private employer is allowed to engage in secret, video-only surveillance of its employees in certain areas of the workplace—the employees may not be videotaped in restrooms, locker rooms, or any rooms where the employer has designated for employees to change their clothes, unless authorized by court order. (See NY Labor Law, Section 203). Also, a private employer in New York may not eavesdrop, because to do so would be a violation of the NY Penal Code, Section 250.00, i.e. a felony. What this means is that surreptitious video surveillance in the areas referenced above is lawful, provided the video cameras do not record the human voice.

 
Employers must take care not to record employees in order to engage in any retribution for the employees’ exercising their civil rights at work. Some New York federal court judges have held that installing hidden cameras to surreptitiously record employees who have complaint about unlawful discrimination and harassment is deemed an adverse action under the NYC Human Rights Law, and other statutes.

A Revised (or perhaps simply repackaged?) Immigration Ban

 
On Monday, March 6, 2017, President Trump signed a new executive order blocking citizens of six predominantly Muslim countries (Libya, Syria, Somalia, Iran, Sudan, and Yemen) from entering the US.

 

What does this mean? It means there’s a 90 day ban on new visa applicants from these six counties, which will then have 50 days to meet US requests for improved vetting of applicants.
How is this order different from the one he signed on January 27, 2017, that was ultimately blocked by federal courts around the county and by the Ninth Circuit Court of Appeals?

 
• The January 27, 2017 order barred the issuance of visas to, and entry of into the US, individuals from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

 

• The January 27, 2017 Order suspended the admission of refugees (except Syrian) to the US for four months, while the admission of Syrian refugees was suspended indefinitely.

 

The new order provides exceptions for travelers from Libya, Syria, Somalia, Iran, Sudan, and Yemen. The citizens of Iraq are no longer included in the ban.

 
Legal permanent residents of the United States, dual nationals who use a passport from another country, and those who have been granted asylum or refugee status in the US are no longer included in the ban.

 
Syrian refugees are no longer indefinitely banned. Instead, there is a 120 day freeze of the entire US refugee program, that requires review and renewal. Refugees already formally scheduled for travel will be allowed entry into the US.

 
The new executive order goes into effect on March 16, 2017.

WHAT EMPLOYEES MUST KNOW ABOUT MONITORING OF ELECTRONIC COMMUNICATIONS

 

Many employers provide company laptops and company phones to their employees, for professional use. Employees often use the company laptop and phone for both personal and work-related communications. Combining personal and work email accounts into one inbox is also not unusual, thereby blurring the boundaries between personal and work-related communications.

What hazards should employees be aware of, then?
Let’s say an employee decides to resign or is terminated from his or her job. The employee will be required to return the company laptop and company phone. Employers routinely use computer forensics professionals to determine what was on these devices, and even retrieve what was deleted. These professionals also can determine what documents the employee transferred in and out of these devices. If the employer ‘learns’ that the departed employee has taken proprietary information or solicited clients (thereby contravening company policies, handbooks, or any employment contracts), then legal action could be taken against the employee. Defending such an action could not only be very costly financially, but could also damage future employment prospects.

When it comes to analyzing whether employers can monitor personal emails and messages on computers and phones, New York currently has legislation pending before the NY State Assembly, as to requiring employers to provide notice before conducting electronic monitoring.

 
For now, employees should conservatively operate under the understanding that the employer has the liberty to monitor communications on its computers, servers, and electronic devices provided to employees to perform work-related tasks. Employees should avoid using their work computers and company laptops to look for a job, or respond to job listings—if the employer finds the employee is conducting a job search on company time, that could give the employer legitimate grounds to fire the employee. It goes without saying that the workplace email should not be used during the job search.

 
Employees may ask—what if they use their private email accounts from the company computers, servers, and electronic devices-can the employer access them? The Stored Communications Act (SCA) makes it unlawful to access without authorization a facility through which electronic communication service is provided and thereby obtain access to communications in electronic storage.

With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail, Hotmail, aol, etc., the most frequent scenario confronted by courts is one in which a former employer accesses the web-based email of a former employee, looking for evidence of wrongdoing. In these cases, the former employer is typically able to access the former employee’s web-based email account because the employee has saved her username and password on a device provided by the employer, which was returned at termination, or failed to delink an account from such a device. In these cases, courts have been reluctant to punish the former employee for failing to take appropriate steps to secure their own private communications.

A New York federal district court considered an employee’s claim that his former employer’s review of emails in his Hotmail account after his termination violated the SCA because it was unauthorized. The former employer argued that its review of the emails did not violate the SCA because the employee had implicitly authorized its review of the emails on his Hotmail account because the employee had stored his username and password on the employer’s computer system or forgot to remove such an account from an employer-provided phone before returning it. The court rejected the former employer’s argument, holding that it was tantamount to arguing that, if the employee had left his house keys on the reception desk at the office, he would have been implicitly authorizing his employer to enter his home without his knowledge. The court also noted that the employer’s computer usage policy did not provide the necessary authorization because it only referred to communications sent over the employer’s systems.

A New York state court ruled in a case with similar facts, that if the employee’s private email account was hosted on a third-party owned server, and not saved on company equipment, then the former employer did not have authorization to access the employee’s personal email account. The takeaways? Try to avoid doing any personal emails using workplace equipment—and don’t save any emails on company equipment. And since emails cannot be destroyed, in light of technological developments, deleted emails that are later retrieved containing information compromising to the employee, can result in offers of severance pay being withdrawn, or legal action being taken against the employee.

Can monitoring and/or retrieval of an employee’s emails ever turn out to be in the employee’s favor? Yes. Texts and emails from managers or co-workers can support an employee’s allegations of sexual harassment, or other types of discrimination. They can also prove that an employee lodged complaints concerning unlawful conduct, with the company. Still, if the employee fails to keep copies (printouts or photos) of the evidence of discrimination in a safe place outside of the workplace, and the employee is fired, it can be costly to obtain electronic discovery of the ‘disappeared’ emails- after the employee brings a lawsuit.

Armed with the information in this blog, employees would do well to avoid using company computers and laptops for anything other than to perform the duties of their job.

A REVISED TRAVEL BAN IS SUPPOSED TO BE RELEASED BY THE WHITE HOUSE

 

If you follow our blog, you know that on January 27, 2017, the President’s initial travel ban blocked travelers from 7 Muslim countries from entering the US for 90 days, suspended refugee resettlement for 120 days, and indefinitely blocked Syrian refugees from entering the US.

 
Litigation ensued, not surprisingly, and a federal judge in Washington issued a nationwide restraining order halting the travel ban, which was upheld by a three-judge panel of the Ninth Circuit Court of Appeals.

 
The administration is supposedly going to release a revised Executive Order on travel and refugees next week, which the President has stated will be ‘more tailored,’ after his initial travel ban was blocked.

 
Stay tuned for new developments about the President’s supposedly forthcoming revised Executive Order, right here on this blog.

NYC HUMAN RIGHTS LAW PROTECTIONS FOR MUSLIMS AND THOSE PERCEIVED AS MUSLIM

 

It’s unfortunate that in these times, large communities adhering to certain religious beliefs are suffering persecution.

 
Right now, large numbers of Muslims or those perceived as Muslims are facing discrimination and harassment.

 
Within the five boroughs of New York, Muslims or those perceived as Muslim have rights—including the right to live and work without being discriminated against, or harassed, pursuant to the NYC Human Rights Law.

 
New York City is home to thousands of Muslims and they, along with other religious groups, make the culture of the city much richer and more diverse.

 
It is prohibited to bully an individual because they are Muslim (or perceived as such), or not hired or promoted because they are Muslim, or perceived as such. Muslim employees or those perceived as such should not be treated differently because of their beliefs, nor prevented from interacting with clients or customers, because of their religious clothing.

 
They have the right to observe religious practices or wear religious clothing at work.

 
They have the right to observe their religious holidays, and employers should work with these observant employees, to arrange for flexible scheduling, such as the ability to make up missed time at a later date. (The employer must accommodate an employee’s request for a reasonable accommodation unless such accommodation poses an undue hardship to the employer.)

 
If a Muslim, or an employee perceived as a Muslim files a claim of discrimination, it is unlawful to engage in retribution against him or her.

 
Though Muslims are the focus of this blog piece, note that individuals of all religions who are being discriminated against or harassed, are protected by the NYC Human Rights Law.

 
As Assembly member Felix Ortiz stated, “Our founding principles and laws prohibit discrimination against any nation or religion. That’s what makes this nation the greatest on earth, and this fight must continue—we cannot remain silent.”

NYC Commission on Human Rights Issues U and T Visa Certifications, making it the first anti-discrimination agency in a major US city to provide these certifications

 
Congress created both the U and T visas in 2000 as part of the Victims of Trafficking and Violence Protection Act to encourage undocumented immigrants to come forward and report crimes, and to assist law enforcement in investigations and prosecutions of criminal activity. Congress has capped the number of available U visas to 10,000 per fiscal year and T visas to 5,000.

 
The NYC Commission on Human Rights is a civil law enforcement agency that investigates and prosecutes a wide range of offenses under the NYC Human Rights Law. In the course of investigating discrimination complaints, the Commission may discover criminal activity that could qualify victims for a U or T visa, such as sexual harassment in the workplace that involves sexual assault, a landlord harassing a tenant to vacate the building by threatening to report them to the police or an employer exploiting a worker under threat of deportation or other harm. The Commission is a law enforcement agency that has the power to issue U or T visa certifications.

 
Due to their undocumented status, many immigrants do not report crimes such as domestic violence, sexual assault and human trafficking for fear of being deported from the U.S.

 
The U visa allows undocumented immigrant victims of crime to temporarily remain in the U.S. for up to four years while assisting law enforcement in investigations and prosecutions, and provides them with a chance to legally work, integrate into their communities and get on a pathway to lawful permanent residence.

 
The T visa, which applies only to undocumented immigrants who have been trafficked into the U.S. allows victims to remain in the U.S. for up to three years to assist in the investigations or prosecutions of trafficking crimes .

 
According to the United States Citizenship and Immigration Services (USCIS), crimes that qualify for U visa certification include rape, torture, trafficking, incest, stalking, domestic violence, sexual assault, abusive sexual contact, prostitution, extortion and sexual exploitation, among others. The list of qualifying crimes is not exclusive and includes similar criminal activity depending on the jurisdiction. Crimes that qualify for T visa certification are limited to sex trafficking and labor trafficking.

 
Providing New Yorkers with greater access to U and T visa certifications has been one of Mayor de Blasio’s efforts to protect and strengthen New York City’s immigrant communities by encouraging undocumented immigrants to come forward and report crimes that have frequently gone unreported due to fear of deportation from the U.S.

 
In order to obtain a U visa, a petitioner is required to provide USCIS with a certification from a law enforcement agency confirming that a qualifying crime has occurred and that the victim was helpful, is being helpful, or is likely to be helpful in the investigation. To obtain a T visa, victims have the option to submit a law enforcement agency endorsement that the individual was a victim of human trafficking. Certification is not required in the T visa process, but does give significant weight to the victim’s application. Certification of both the U and T visa does not automatically confer visa status. Only USCIS may issue a U or T visa.

 
There is no statute of limitations for when a crime occurred or was reported and the signing of the U or T visa certification, nor does a crime have to be previously reported to qualify for certification.
In addition to the Commission, the New York Police Department, the borough District Attorney’s Offices, the Law Department, the Administration for Children’s Services, HRA’s Adult Protective Services also issue U and T visa certifications.

 
Under the current administration, we do not know if U and T visas will continue to exist, and if so, the number that will be available every fiscal year.

 
We will keep you abreast of developments concerning the U and T visas, if any, right here on this blog.

Travel Ban Update: Ninth Circuit Court Refused Emergency Government Request to Resume Implementation of the Trump Administration Executive Order

 

As many of you know, on February 3, 2017, the United States District Court for the Western District of Washington (Judge Hobart) issued a temporary restraining order impacting the Trump Administration Executive Order issued on January 27, 2017 (Executive Order). The temporary restraining order temporarily stopped the federal government from barring the issuance of visas to, and entry of into the US, individuals based on the fact that they are from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

The very next day, on February 4, 2017, the Trump Administration filed an emergency motion for administrative stay and motion for stay pending appeal with the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). That same day, the Ninth Circuit denied the Administration’s motion for an immediate administrative stay. Additionally, the Ninth Circuit required filings to be submitted for review by the parties (the States of Washington and Minnesota, and the federal government). Though the stay was temporary, a stay is granted when there’s a likelihood of success on the merits.

As a result of that stay:

 
• The US Department of State confirmed that all provisionally revoked visas (60,000 of them!) as a result of the Executive Order have been reversed and are valid for travel.

• Individuals from the seven affected countries may enter the U.S. while we await a ruling from the Court.

• Customs and Border Protection has also confirmed to the American Immigration Lawyers Association (AILA) that individuals whose visas were physically cancelled last week in response to the Executive Order will not need to apply for a new visa, provided there were no other eligibility issues, and will be asked to complete Form I-193 (Waiver of Visa or Passport Requirement) on application for admission.

Meanwhile, the Trump Administration has itself revised the Executive Order, explaining:

 
• Green Card holders are not covered by the Executive Order.
• Dual Citizens with a passport from an affected country and non-affected country will be treated as citizens of the non-affected country.
• Iraqis with Special Immigrant Visas are no longer covered by the Executive Order.

 
And then on February 9, 2017, a three-judge panel of the Ninth Circuit ruled that Judge Hobart’s earlier restraining order should remain in effect. The three judges, two Democratic appointees and one appointed by a Republican, unanimously said the administration had not shown an urgent need to have the order go into effect immediately.

By contrast, the panel said that the two states that had challenged the ban had shown that some of their residents would be harmed by having their right to travel cut off.

 
The court faulted the federal government for failing to present evidence that the ban was needed for national security, opining, “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

 
The court also stated that the states were likely to succeed in their due process claim, noting that the due process protections provided under the Constitution apply not only to citizens, but to all ‘aliens’ in the country, as well as ‘certain aliens attempting to re-enter the United States after traveling abroad.’
We’ll keep you posted about further developments right on this blog.

Transgender and Gender Non-Conforming Communities in Housing, Employment and Public Spaces enjoy strong protections in New York City

 
The New York City Commission on Human Rights has issued guidance that sets forth what constitutes gender identity and gender expression discrimination pursuant to the New York City Human Rights Law.

 
As per the Commission, examples of violations of the New York City Human Rights Law on the basis of gender identity and expression include:
–“Intentionally failing to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” when she has made it clear that she prefers female pronouns and a female title.

 
–Refusing to allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender identity. For example, barring a transgender woman from a women’s restroom out of concern that she will make others uncomfortable.

 
–Enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender. For example, enforcing a policy that requires men to wear ties or women to wear skirts.

 

–Failing to providing employee health benefits that cover gender-affirming care or failing to provide reasonable accommodations for individuals undergoing gender transition, including medical appointments and recovery, where such reasonable accommodations are provided to other employees. (Federal and New York laws already require certain types of insurance to cover medically-necessary transition-related care.)”

 
http://www.nyc.gov/html/cchr/downloads/pdf/publications/GenderID_InterpretiveGuide_2015.pdf/

 
The New York City Human Rights Law is considered one of the strongest in the United States in protecting the rights of transgender and gender non-conforming individuals. The impact of this development will be significant and positive, since according to the Commission, roughly 25,200 transgender and gender non-conforming people call New York City home.

 
The Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct.

 
That is the law as it stands now.

24 MONTH OPTIONAL PRACTICE TRAINING (OPT) EXTENSION

Did you know that on March 11, 2016, the Department of Homeland Security published a final rule allowing certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-month extension of their post-completion Optional Practical Training (OPT)?

The 24-month extension will replace the 17-month STEM OPT extension previously available to STEM students Eligible students may now apply for a 24-month STEM OPT extension.

To qualify for the 24 month OPT extension, in addition to being within the valid period of OPT, you must have earned a bachelor’s, master’s or doctoral degree from an accredited school and certified by the Student Visitor and Exchange program.

If your current OPT is based on a non-STEM degree, you may be able to use a prior STEM degree earned from a US institution of higher education to apply for a STEM OPT extension, provided your practical training opportunity is also directly related to the previously obtained STEM degree.

NEW YORK CITY HUMAN RIGHTS LAW OFFERS NEW PROTECTIONS—FOR CAREGIVERS

If you work or intern full-time or part-time, with or without pay, within the five boroughs of New York City, for an employer with four or more employees, and have caregiving responsibilities at home, such as caring for kids (including adopted or foster kids) under the age of 18, caring for parents, siblings, spouses, grandparents, or grandchildren with a disability, then you are protected from workplace discrimination against caregivers based on a May 14, 2016 amendment to the New York City Human Rights Law.

According to the New York City Commission on Human Rights, employees without work authorization documents, job applicants and most independent contractors are also protected from caregiver discrimination.

Based on this amendment, employers cannot refuse to hire fire, or otherwise discriminate against job applicants or employees in the terms, conditions, or privileges of employment because of their caregiving responsibilities.   Still, employers don’t have to accommodate caregivers’ responsibilities and obligations, by changing a shift, or allowing the caregiver to leave work early on account of caregiving responsibilities, unless these accommodations and benefits are provided to other employees.

This amendment is positively impacting individuals in New York City who take care of “1.8 million children under the age of 18, 1 million people aged 65 or order, and roughly 900,000 people with disabilities” by providing them recourse to file workplace discrimination claims if their rights are violated.

As Mayor de Blasio stated, “Caregivers are the people who keep families together.  It is critical that New York City protects them so they can continue to provide essential care to the children, elderly people, and individuals with disabilities who rely on them to lead happy and healthy lives. No one deserves to be treated differently or denied opportunities in the workplace because of their status as a caregiver. [Today], these unsung heroes receive direct protection under the law.”

LEGISLATION PROPOSED TO ADDRESS WAGE INEQUALITY

It’s not news that there is a wage gap between men and women.

The New York City Public Advocate’s office released a wage equity report earlier this year, that shows just how wide this gap is.

  • New York City women earn 5.8 billion dollars less in wages than men each year and face a large wage gap in every industrial sector.
  • Even among women with a college or post-graduate degree in New York City, the gender wage gap persists at 16 percent and 20 percent, respectively.
  • Wage disparities for women of color in New York City are worse than the national average.

On August 16, 2016, based on the above findings, Letitia James, New York City’s Public Adovcate, introduced a bill to amend the New York City Human Rights Law, “in relation to prohibiting employers from inquiring about or relying on a prospective employee’s salary history.”

As the summary of the bill states, “This bill would prohibit employers from inquiring about a prospective employee’s salary history during all stages of the employment process.  In the event that an employer is already aware of a prospective employee’s salary history, this bill would prohibit reliance on that information in the determination of salary.  When employers rely on salary histories to determine compensation, they perpetuate the gender wage gap.  Adopting measures like this bill can reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity.”

The proposed amendment would not apply to any actions taken by an employer in accordance with any federal, state, or local law that authorizes the disclosure or verification of salary history for employment purposes.

This bill has been referred to the City Council’s Committee on Civil Rights for further consideration.

THE CITY OF NEW YORK WANTS TO PROTECT THE RIGHTS OF THOSE BRAVE HUMAN BEINGS WHO HAVE SERVED TO PROTECT US

On August 23, 2016, legislation was introduced proposing to amend the New York City Human Rights Law, to make veterans a protected class.

If the amendment becomes law, veterans (includes all uniformed service members- retired or active) may assert claims of discrimination if they think they are not being awarded equal treatment under the law.

New York City’s Mayor Bill de Blasio has stated,

“Veterans across the country routinely face obstacles in employment, housing and public accommodat­ions.  We don’t tolerate that in New York City. These brave men and women put their lives on the line for our country and they deserve respect and dignity.”

According to the City, veterans and active service members are vulnerable to differential treatment from employers who believe they may be deployed at any time or unfairly believe they may have mental health trauma due to experiences during their service.

Nearly 14,000 veterans in New York State are currently unemployed, according to the Bureau of Labor Statistics.

Public Advocate Letitia James announced, “By guaranteeing our veterans safeguards under the City’s Human Rights Law, we will ensure that all uniformed service members, retired and active, are protected from discrimination. New York is a city that will always stand by those who have served to protect us.”

NEW YORK CITY’S “STOP CREDIT DISCRIMINATION IN EMPLOYMENT ACT”

The Stop Credit Discrimination in Employment Act (“SCDEA”) amended the New York City Human Rights Law by making it an unlawful discriminatory practice for employers, labor organizations, and employment agencies to request or use the consumer credit history of an applicant or employee for the purpose of making any employment decisions, including hiring, compensation, and other terms and conditions of employment.   The SCDEA also makes it an unlawful discriminatory practice for a City agency to request or use, for licensing or permitting purposes, information contained in the consumer credit history of an applicant, licensee or permittee.

It is New York City’s position that consumer credit history is rarely relevant to employment decisions, and consumer reports should not be requested for individuals seeking most positions in New York City.    In enacting the SCDEA, the City Council intended for it to “be the strongest bill of its type in the country prohibiting discriminatory employment credit checks.”

According to the New York City Commission on Human Rights,

“The SCDEA is intended to stop employers from using consumer credit history when making employment decisions—a practice that has a disproportionately negative effect on unemployed people, low income communities, communities of color, women, domestic violence survivors, families with children, divorced individuals, and those with student loans and/or medical bills. The City Council noted that multiple studies have failed to demonstrate any correlation between individuals’ credit history and their job performance.

There are positions exempted from the SCDEA’s anti-discrimination positions, such as:

-Licensed mortgage loan originators (and other positions required by state or federal law or regulations, or by a self-regulatory organization to use an individual’s consumer credit history for employment purposes);

-Police officers, peace officers, or positions with a law enforcement or investigative function at the Department of Investigation;

-Positions subjected to a Department of Investigation background investigation;

-Positions requiring security clearance under state or federal law;

-Non-clerical positions having regular access to trade secrets, intelligence information, or national security information;

-Positions requiring bonding under federal, state, or City law or regulation;

-Positions involving responsibility for funds or assets worth $10,000 or more; and

– Positions involving digital security systems

      The SCDEA is relatively new, and individuals or employers who need legal advice on asserting it, or implementing it, should seek legal advice promptly.

VICTIMS OR SURVIVORS OF DOMESTIC VIOLENCE IN NEW YORK CITY HAVE RIGHTS

Pursuant to the New York City Human Rights Law, it is unlawful for an employer to discriminate against, fire, or refuse to hire an employee because he or she is a victim of domestic violence, sex offenses, or stalking.

An employer is entitled to ask for proof of domestic violence status.  Such proof includes a sworn statement from a professional helping the employee address the violence, such as a shelter or victims’ services agency, doctor, lawyer, or member of the clergy; a police record; a temporary or permanent restraining order; or “other corroborating evidence.”

If the abuser harasses the victim or survivor at work, either remotely or in person, it is prohibited by law to punish or fire the victim or survivor because of the abuser’s conduct.

Employers must work with the victim or survivor to provide reasonable accommodations that would allow him or her to do the job- for example, changing a phone number at work so the abuser cannot call, is such an accommodation.  Also, an employee may ask for time off to find safe housing, receive counseling, or take other steps to address the violence as a “reasonable accommodation.”  A requested accommodation must be provided unless it would pose an undue hardship on the business.

Employers must not engage in retribution against employees for taking time off to go to court or to otherwise address the domestic violence.   However, an employer does not need to pay an employee for the time that he or she is absent on account of addressing the domestic violence.

If an employee quits or leaves his or her job because of the violence, that should not bar him or her from receiving unemployment insurance benefits. Circumstances related to domestic violence may be “good cause” for voluntarily quitting a job. Also, some judges have held that “misconduct” related to the violence (such as absenteeism or tardiness) may not bar an employee from collecting unemployment benefits.