Two new employment laws took effect in New York City in late 2015 that limit the uses employers may make of job applicants’ credit and criminal histories. Individuals who, for whatever reason, have credit problems, or who have a record of one or more arrests, criminal charges, or convictions, may have difficulty finding a job because of this information, whether it is directly relevant to the job or not. The “Stop Credit Discrimination in Employment Act” (SCDEA) prohibits employers from requesting or using the consumer credit history of a job applicant or employee, except in specific, narrow circumstances. The “Fair Chance Act” (FCA) restricts when employers may ask about criminal history, and how they may use that information. New Jersey state law addresses criminal history in employment on a more limited basis, but it does not protect credit information.
The SCDEA, which took effect in September 2015, amends the New York City Human Rights Law (NYCHRL) to add a provision regarding employers’ use of consumer credit history. It defines “consumer credit history” as a person’s “credit worthiness, credit standing, credit capacity, or payment history,” based on certain types of information. N.Y.C. Admin. Code § 8-102(29). Credit information typically comes from credit reports and credit scores issued by the major consumer credit bureaus, but the NYCHRL states that it can also come directly from the job applicant or employee if it relates to “details about credit accounts,…bankruptcies, judgments or liens.” Id.
An employer, under the SCDEA, may not request or use consumer credit information in hiring decisions, nor may it discriminate based on an employee’s credit history. N.Y.C. Admin. Code § 8-107(24). The law allows exceptions if state or federal law requires a review of credit history. Other exceptions include jobs as a police officer or certain other law enforcement positions, any job that requires the employer to obtain a bond, jobs requiring security clearance under state or federal law, and jobs that involve high levels of financial responsibility or digital security. A bill with similar provisions, S. 1130, passed the New Jersey Senate in June 2015, but its companion bill in the Assembly died in committee.
The FCA, which took effect last October, is one of many “Ban the Box” laws passed around the country, so named because they prohibit employers from inquiring about a job applicant’s criminal history—often by having applicants check a box if they have a criminal record—during the initial stage of the application process. Under the FCA, employers may not inquire about an applicant’s criminal history until they have made a conditional offer of employment. At that point, they must consider any criminal history in accordance with existing state law. N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. Law § 750 et seq. Employers are also prohibited from discriminating based on records of arrests or past criminal charges that have been terminated in the applicant’s favor. N.Y.C. Admin. Code § 8-107(11). New Jersey’s Opportunity to Compete Act (OCA), N.J. Rev. Stat. § 34:6B-11 et seq., took effect in March 2015, but it is not as extensive as New York City’s law.
If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group today through our website, at 973-781-1204, or at 646-867-7997.
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