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The Unemployed Rejoining the Workforce: The Rights You Should be Aware of as a Member of the New Protected Class in New York

            From where the United States economy was a mere two years ago, with a 9.4 percent unemployment rate, the current 7.5 percent seems to be an improvement.  Given the fact of decreasing national unemployment rates, one may assume that our local region’s unemployment rate is also slowly decreasing. Sadly, this does not appear to be the case. In New York City, although the unemployment rate is now below 7.0 percent, here in Brooklyn, the unemployment rate remains between 8.0 and 8.9 percent.

            Even with the seemingly discouraging unemployment rate in Brooklyn, there are still job openings that continue to appear as a consequence of Brooklyn’s expanding residential population and the development of the local economy.  With competitive housing costs, great schools and comfortable neighborhood vibe, Brooklyn is giving next door neighbor, Manhattan, a run for her money, particularly in neighborhoods like Williamsburg, Park Slope, Carroll Gardens, Gowanus, Prospect Heights, Fort Greene, Red Hook, Greenpoint, Clinton Hill, and Cobble Hill.  However, despite this, even Brooklyn’s most qualified job candidates face obstacles getting hired given the overall condition of the economy; many eligible job candidates struggling to reenter the workforce after a job loss or long-term unemployment are turned away at the door solely because they are currently unemployed.

           Making employment decisions based on an individual’s current unemployed status alone, without more context, is unfair and, as of tomorrow, unlawful in New York City.  Beginning on June 11, 2013, the “unemployed” will now be considered a protected class under the New York City Human Rights Law enabling those discriminated against on this basis to bring a civil lawsuit.   Employers in New York City will now be barred from basing hiring decisions, compensation, terms, conditions, and privileges of employment on the fact that a potential job candidate is currently unemployed. Furthermore, employers who choose to advertise open positions cannot require that a candidate have current or recent employment in order to qualify for employment.  However, under the new law, employers are not barred from considering a candidate’s unemployment status when there is a “substantially job related reason for doing so.” In other words, employers can ask job candidates why they separated from their previous site of employment. Employers may also inquire as to what training, certification, permits, job experience or education levels an individual may have previously acquired. This amendment also stipulates that worker’s compensation rates may be decided based upon an individual’s prior work experience and training, and those who are currently employed by the employer with the open position may be given priority for employment.

The bottom line is that qualified employees who have been unable to find work in this difficult economy and have been overlooked for work eligibility based on their employment status now have the law behind them. Especially in Brooklyn, where the unemployment rate is higher than New York State and national averages, it is crucial that job seekers know that there is help available if they have been victims of unemployment discrimination. No matter what your ethnicity, gender, age, or current employment status, know that everyone has a right to be fairly and equally considered as a candidate for employment.

Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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