Criminal history can be an enormous impediment to obtaining employment. People often find themselves shut out from many opportunities, even when their particular history of arrest or conviction has no bearing at all on the job they are seeking. New York City employment discrimination attorneys can look to the Fair Chance Act (FCA) in claims for discrimination on the basis of criminal history. A related issue involves drug testing during hiring. Marijuana is legal for, at a minimum, medical use in more than half of the states in the country, including New York. Many employers, however, continue to use marijuana testing to eliminate job candidates. Local Law 2019-091, which will go into effect in New York City in May 2020, will prohibit pre-employment testing for marijuana in many situations.
The FCA bars employers from inquiring about criminal history until the final stages of the hiring process. N.Y.C. Admin. Code § 8-107(11-a)(a)(3). Employers may not discriminate against job applicants solely on the basis of criminal history, unless they follow procedures set forth by state law. Id. at §§ 8-107(10)(a), (11-a)(b); N.Y. Corr. L. § 750 et seq. Exceptions include jobs that require specific security clearances, and situations where an individual’s specific history would directly affect the job in question.
While marijuana remains highly controlled under federal law, most states have eased restrictions to various extents. California was the first state to allow medical marijuana use, and Colorado was the first to allow recreational use. New York enacted medical marijuana legislation in 2014. While the state has not decriminalized it to the extent of states like Colorado, it recently downgraded possession of small amounts from a criminal offense to a civil violation.
Critics of using drug testing to screen job applicants note that the practice first became widespread in the 1980’s, when President Reagan was calling for “drug-free workplaces.” Even at the time, there was significant opposition to the practice. Pre-employment testing for marijuana now often has the effect of penalizing individuals for activities that may be legal, in which they engage on their own time, and without regard to whether it has any impact on the employer.
There is undoubtedly good reason to screen for certain drugs, but public discourse is increasingly shifting away from the need to screen for marijuana use in most situations. Nevada became the first state to pass a law banning pre-employment marijuana testing, shortly after New York City’s law passed. The Nevada law is scheduled to go into effect before New York City’s, however, in January 2020.
When Local Law 2019-091 goes into effect on May 10, 2020, it will apply to “marijuana” and “tetrahydrocannabinols,” or synthetic marijuana, as those terms are defined by state law. See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). Requiring a potential employee, as part of the hiring process, to submit to testing for either type of substance will be an unlawful discriminatory practice under the New York City Human Rights Law. Exceptions will include candidates for law enforcement jobs, jobs involving care of children or patients, and positions that require a commercial driver’s license. The law also will not affect drug testing required by federal transportation regulations. See 49 C.F.R. Part 40.
Phillips & Associates’ employment lawyers represent job seekers and employees in New York City. Please contact us today at (212) 248-7431 or online to schedule a free and confidential consultation to see how we can assist you.