Suppose you were looking to hire some help to assist your elderly, infirm mother in her home.
You might want to know if that person had been convicted of a crime. Depending on the nature of the crime and the circumstances of the conviction, including how long ago it was, you might decide to hire that person anyway. But my guess is that you would want to make that decision yourself, in full possession of the facts.
Now suppose I run an agency that provides such household help. You might not ask about a potential caretaker’s criminal history, because you would assume I had already carefully vetted my employees before placing them in the homes of a vulnerable population. If you did think to ask me about whether I had taken such steps, you might well be satisfied if I told you I had taken every step legally permissible to ensure that only trustworthy, reliable people are on my payroll.
I don’t run a home health care agency. But I do run a financial and investment planning business. Our clients have collectively entrusted well over $1.2 billion to my firm’s care. While it isn’t quite the same as looking after someone’s mother, it is still a big responsibility, and I do my best to ensure that the people I employ, in any capacity, display the highest integrity. It doesn’t matter whether that person’s job is to rebalance a portfolio, edit this blog or answer the telephone.
All of which is why I am very happy I do not do business in New York City.
Since the 2013 election of Mayor Bill de Blasio, the city has unleashed a cascade of employment law mandates that treat job opportunities as entitlements to be withheld from the citizenry only under the most limited, government-approved circumstances.
Like some other jurisdictions, the city has implemented “ban-the-box” rules that prevent employers from inquiring about an applicant’s criminal record until after a provisional job offer has been made. This does not just ban inquiries about arrests, which can have significantly different effects among ethnic groups - in New York City, especially, whether you have been arrested for marijuana possession is often a function of whether your skin color has attracted a previously common stop-and-frisk search. The rules also ban inquiries about convictions.
Once a conditional employment offer is made, an employer can technically check an applicant’s record. But if the employer withdraws an offer after learning of an applicant’s past arrests or convictions, the withdrawal must be made with elaborate and inevitably subjective justification that can potentially expose the business to lawsuits from the city, as well as the applicant. Though other jurisdictions have, unwisely, adopted ban-the-box, New York City’s version is especially onerous and financially hazardous, especially to smaller firms.
Not content with banning the questions about criminal records, the city has also severely limited credit checks, even those that are run even with the applicant’s consent, which was already required in any case under the federal Fair Credit Reporting Act. The few exemptions to the ban generally pertain to jobs that deal directly with large sums of money or jobs in law enforcement. As I observed in this space when the law passed this spring, the rule betrays a deep problem with the way New York City’s lawmakers think about how the job market works. Not every job requires a credit check, of course, but many jobs that do not require handing more than $10,000 at a time still require a demonstrated track record of financial trustworthiness.
New York City’s mandate, however, says otherwise. In other words, if the applicant to work in your mother’s home has $50,000 in credit card debt on which she is three months late, it is just none of your business. Or mine, if I run the firm through which you hire her.
All of this arrives on top of the city’s recent mandates on paid sick leave, and its imposition (under state auspices) of a $15 an hour minimum wage for employees of fast-food companies and their franchisees, though not (yet) of their small local competitors. There have also been changes to unemployment insurance rules and to requirements for accommodating pregnant employees.
While never known for its warm and sunny business climate, the city under de Blasio and an equally misguided City Council now ranks about as high on my list as Nunavut as a prospective place to establish an office. This in spite of the fact that my business, which employs only a small number of highly educated professional people at wages well above the minimum, is the type that is best able to bear the burdens that the city relentlessly imposes. If I were considering starting, say, a home health aide company, I wouldn’t give a minute’s thought to doing it in the five boroughs. There are plenty of other customers elsewhere, in places where it is easier and safer for them and me to do business.
Thus the irony of a de Blasio administration that is committed, in thought if not in deed, to the idea of making the city a prosperous and congenial place for all its citizens, rather than just an affluent and well-educated minority. Everything they have done thus far has helped to create the jobs New Yorkers want - everywhere other than in New York City.