Amendment of Rules Governing Employment Agencies

Adopted Rules: Closed to Comments

Effective Date: 
Friday, March 29, 2019
Agency:
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Download Copy of Adopted Rule (.pdf): 

 

New York City Department of Consumer Affairs

Notice of Adoption

Notice of Adoption to amend and add certain rules related to employment agencies, including establishing a template “Terms and Conditions” document, requiring agencies to post certain signs as mandated by law, prohibiting discrimination based on sexual orientation, and updating the penalty schedule applicable to employment agencies.

NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED IN the Commissioner of Consumer Affairs by Sections 181(3)(c) and 189(3) of the New York General Business Law, Sections 1043 and 2203(f) of the New York City Charter, and Section 20-104(b)(7) of the New York City Administrative Code, and in accordance with the requirements of Section 1043 of the New York City Charter, that the Department makes these amendments.

This rule was proposed and published on January 3, 2019. A public hearing was held on February 4, 2019.

Statement of Basis and Purpose of Rule

DCA adds a new Section 5-259 to Title 6 of the Rules of the City of New York to establish a template “Terms and Conditions” document, pursuant to Section 181(3) of the New York General Business Law, which an employment agency is required to provide to its customers. The “Terms and Conditions” document must accompany each contract and summarize the important terms and conditions contained in the contract in plain and commonly understood terms.

DCA also amends Section 5-250 requiring employment agencies to post certain signs, as required by Section 188 of the New York General Business Law. 

DCA also amends Section 5-248 to prohibit employment agencies from discriminating on the basis of sexual orientation. Working with the City’s rulemaking agencies, the Law Department, the Office of Management and Budget, and the Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying rules that should be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This amendment to Section 5-248 was identified through this initiative.

Section 189(3) of the New York General Business Law grants DCA the authority to create administrative rules to effectuate the purposes of Article 11 of the General Business Law. Section 20-104(b)(7) of the New York City Administrative Code grants DCA the power to create rules to ensure that licensed businesses do not discriminate on the basis of sex, among other things. Discrimination on the basis of sexual orientation is a form of discrimination on the basis of sex. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (en banc).

DCA also amends Section 6-03(b) to add to the list of provisions of Title 6 of the Rules for which the opportunity to cure a first-time violation is available.  Specifically, DCA adds three employment agency related violations to the list: Sections 5-250 and 5-251, and Section 188 of the New York General Business Law. Section 189(5) of the New York General Business Law grants to DCA the discretion to make certain violations curable. 

Finally, DCA amends the employment agency penalty schedule in Section 6-59.  DCA indicates that first-time violations of certain provisions are curable.  DCA also changes the maximum penalty for most employment agency violations pursuant to Section 189(5) of the New York General Business Law (NYGBL).  Conforming the penalties to NYGBL Section 189(5) will double first violations and first default amounts, and will increase by ten times the current amount for all subsequent violations and defaults.