(a) Per Se Violations. The following are per se violations of §§ 8-107(9)(d) and 8-107(24) of the Administrative Code (regardless of whether any adverse employment or licensing action is taken against an individual applicant, licensee, or permittee), except where an exemption applies pursuant to subdivision (c) of this section:
(1) Requesting consumer credit history from an applicant, licensee, or permittee.
(2) Requesting consumer credit history regarding applicants, licensees, or permittees from a consumer reporting agency.
(3) Using consumer credit history for employment, licensing, or permitting purposes.
(4) Requesting or requiring applicants for employment, licenses, or permits to consent to the disclosure of their consumer credit history to the employer.
(b) Presumptive Violations. It shall be a rebuttable presumption that posting or circulating any solicitation indicating that the employer, labor organization, employment agency, or licensing agency will use consumer credit history for employment, licensing, or permitting purposes constitutes a violation of §§ 8-107(9)(d) and 8-107(24) of the Administrative Code of the City of New York, except where an exemption applies pursuant to subdivision (c) of this section.
(c) Exemptions Under the Stop Credit Discrimination in Employment Act.
(1) Employers may require or use for employment purposes an applicant's or employee's consumer credit history when required to do so for specific positions or titles under state or Federal law or regulations, or rules or regulations promulgated by self-regulatory organizations as defined in Section 3(a)(26) of the Securities Exchange Act of 1934. This exemption includes positions in which applicants or employees are not required to be registered with a self-regulatory organization but where the applicant or employee nevertheless either chooses to become registered while in the position or elects to maintain their prior registration.
(2) Agencies may request and use an applicant's, licensee's, or permittee's consumer credit history for licensing or permitting purposes when required to do so under State or Federal law or regulations.
(3) The following positions are exempt from the Stop Credit Discrimination in Employment Act:
(i) Police officers or peace officers, as those terms are defined in subdivisions thirty-three and thirty-four of Section 1.20 of the criminal procedure law, respectively.
(ii) Positions with a law enforcement or investigative function at the Department of Investigation.
(iii) Positions subject to background investigation by the Department of Investigation, provided however that the appointing agency may not use consumer credit history obtained by the Department of Investigation for employment purposes unless the position is an appointed position and a high degree of public trust, as defined in 47 RCNY § 2-01, has been reposed in the position.
(iv) Positions requiring bonding under City, State, or Federal law or regulation. An exemption will not apply where bonding is simply permitted, but not required, by City, State, or Federal law or regulation. Only positions where bonding is required by law are exempt.
(v) Positions requiring security clearance under Federal or State law. This exemption is applicable only when such security clearance is legally required for the person to fulfill the duties of the position in question.
(vi) Non-Clerical positions having regular access to trade secrets, intelligence information, or national security information as defined in 47 RCNY § 2-01.
(vii) Positions in which the individual regularly has: (A) signatory authority over third-party funds or third-party assets that are valued at $10,000 or more; or (B) fiduciary responsibility to an employer who has granted the employee signatory authority to enter into financial agreements valued at $10,000 or more on behalf of the employer. Signatory authority shall mean final authority, not subject to approval, delegated by an employer or third party to commit the employer or third party to a binding agreement. This exemption does not apply to positions for which the $10,000 threshold can be met only by aggregating the value for multiple assets or agreements over which the position holds signatory authority or fiduciary responsibility.
(viii) Positions with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer's or client's networks. For purposes of this provision, a digital security system refers to an organization's security program that is designed to ensure information, assets, and technologies are not accessible by unauthorized parties outside of the employer or its clients.
(4) Evaluation of exemptions and burdens of proof.
(i) All exemptions to the prohibitions on credit discrimination must be construed narrowly.
(ii) It shall be an affirmative defense that any action taken by an employer or agent thereof is permissible pursuant to this subdivision, and the burden shall be on the employer, labor organization, employment agency, or licensing agency to prove the exemption's applicability by a preponderance of the evidence.
(iii) Exemptions apply only to individual positions.
(d) Early Resolution for Commission-Initiated Complaints Regarding Certain Per Se Violations.
(1) Early Resolution is an expedited settlement option that is available to respondents in certain circumstances that allows them to immediately admit liability and accept a penalty in lieu of litigating the matter.
(2) Except as provided in paragraph (3) below, the Law Enforcement Bureau will offer Early Resolution for Commission-initiated complaints of per se violations under the following circumstances:
(i) The respondent has committed a per se violation pursuant to subdivision (a) of this section;
(ii) There are no other pending or current allegations against the respondent concerning violations of Title 8 of the Administrative Code;
(iii) The respondent has 50 or fewer employees at the time of the alleged violation; and
(iv) The respondent has been held liable for no more than one violation of Title 8 of the Administrative Code in the 3 years preceding the filing of the complaint. For purposes of this provision, a violation of any provision of Title 8 of the Administrative Code that resulted in an admission pursuant to Early Resolution, conciliation, or other settlement agreement, or a finding of liability issued after a hearing or trial pursuant to a complaint filed with or by the Commission, shall be considered a past violation.
(3) Notwithstanding any other provision of this section, the Commission retains discretion to proceed with a full investigation and a referral to the Office of Administrative Trials and Hearings when the Law Enforcement Bureau determines that an offer of Early Resolution will not serve the public interest. Factors that indicate that an Early Resolution is not in the public interest include, without limitation:
(i) The respondent has had prior contact with the Commission, including without limitation, formal and informal complaints, investigations, and trainings, and workshops conducted by the Commission, from which an inference may be made that the alleged violation was willful.
(ii) The respondent works with vulnerable communities.
(iii) The Commission has reason to believe discrimination is significant in respondent's industry.
(4) Early Resolution Notice.
(i) A respondent will be served with a copy of the Early Resolution Notice simultaneously with service of the complaint.
(ii) The Early Resolution Notice will state that the respondent has 90 days to answer a complaint in which the respondent has been offered the option of Early Resolution, and that there will be no extensions of time granted.
(iii) The Early Resolution Notice will inform the respondent of its right to either: (A) admit liability and agree to the proposed affirmative relief and penalty, or (B) file an answer to the complaint in compliance with 47 RCNY § 1-14, except that the time to respond will be 90 days instead of 30 days.
(5) Early Resolution Penalties.
(i) An Early Resolution penalty includes: (A) a mandatory and free training provided by the Commission; (B) a requirement that the respondent post a notice of rights under Title 8 of the Administrative Code; and (C) a monetary fine as determined by the penalty schedule outlined in Subparagraph (ii) of this paragraph. The Early Resolution Notice will inform the respondent that a private individual aggrieved by the same violation may also file an independent complaint with the Commission or may bring a court action.
(ii) Early Resolution fines will be assessed according to the following penalty schedule:
Employer Size (at the time of the violation) | 1st Violation | 2nd Violation (within 3 years of the resolution date of the first violation) |
4 - 9 | $500.00 | $1,000.00 |
10 - 20 | $1,000.00 | $5,000.00 |
21 - 50 | $3,500.00 | $10,000.00 |
** Distinct and contemporaneous violations will be counted separately for the purpose of calculating a monetary penalty. For example, an employer who has 4 - 9 employees who requests consumer credit history from an applicant orally in violation of 47 RCNY § 2-05(a)(1) and requires that same applicant to sign a waiver authorizing a credit check in violation of 47 RCNY § 2-05(a)(4) will be charged with two separate violations of $500.00 each. However, multiple violations of one section, for example, posting a discriminatory advertisement on three different websites, will be counted as one violation for the purpose of assessing a penalty under this section. |
(iii) If the employer believes that the employer size used to assess the imposed penalty is incorrect, the employer may call the number listed on the Early Resolution Notice.
(6) Admission of Liability in an Early Resolution Case. An admission of liability must be returned to the Commission in the manner prescribed in the Early Resolution Notice. Once the admission is received, the Law Enforcement Bureau will promptly forward it to the Chair. The signature of the Chair with the notation "SO ORDERED" constitutes the final order of the Commission. A copy of such order will be served upon the respondent.
(7) Contesting Liability and Filing an Answer in an Early Resolution Case. Notwithstanding any provision of 47 RCNY § 1-61 or 47 RCNY § 1-62, if a respondent elects to deny liability and contest the allegations in the complaint, the respondent shall file an answer and, upon receipt of the answer, the Law Enforcement Bureau will refer the case to the Office of Administrative Trials and Hearings for a hearing pursuant to 47 RCNY § 1-71. The hearing will be conducted in accordance with Subchapter C of 48 RCNY Chapter 2.
(8) Failure to Respond in an Early Resolution Case.
(i) If a respondent fails to respond to a complaint accompanied by an Early Resolution Notice within 90 days, all allegations in the complaint will be deemed admitted unless good cause to the contrary is shown, pursuant to § 8-111(c) of the Administrative Code.
(ii) If a respondent fails to respond to a complaint accompanied by an Early Resolution Notice within 90 days, the Law Enforcement Bureau may refer the case to the Office of Administrative Trials and Hearings pursuant to 47 RCNY § 1-71 and, in a written motion pursuant to 48 RCNY § 1-50, seek an expedited trial and issuance of a report and recommendation that finds respondent in default and recommends the affirmative relief and penalties requested by the Law Enforcement Bureau. The motion papers will include all supporting evidence, a copy of the complaint, the Early Resolution Notice, and proof of service.
(9) Relief From Default in an Early Resolution Case. At any time prior to the issuance of a decision and order, the respondent may move for relief from default.
(Added City Record 11/24/2017, eff. 12/24/2017)