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Last week, the New York City Council passed the Stop Credit Discrimination in Employment Act, which amends the New York City Human Rights Law to prohibit employment discrimination on the basis of an individual’s consumer credit history.

The law defines “consumer credit history” as “any information bearing on an individual’s credit worthiness, credit standing, or credit capacity, including but not limited to an individual’s credit score, credit account and other consumer account balance, and payment history.”

Specifically, the law prohibits an employer, labor organization, employment agency or licensing agency from (1) requesting a consumer credit history for employment purposes, (2) using it for employment purposes, or (3) retaliating or otherwise discriminating, against an applicant or employee with respect to employment decisions, including hiring, firing, promotion, and terms, conditions or privileges of employment, based upon information contained in the consumer credit history.

The California-based Chinese food restaurant chain agreed to settle a collective action brought by 155 general managers for close to $3 million.  In Kudo v. Panda Restaurant Group Inc. (09-cv-00712, U.S. District Court, Southern District of New York), nationwide general managers claimed that they were improperly classified as exempt from the coverage of the Fair Labor Standards Act (FLSA), which, among other things, mandates the payment of overtime to employees, who work more than 40 hours in a workweek.

According to the general managers, they spent significantly more time performing nonexempt duties, such as preparing food, taking orders, removing trash, and collecting payments from customers, than performing managerial or exempt tasks.

This case illustrates, once again, that a worker’s title does not determine whether or not the worker is exempt, even if the worker is being a paid on a salaried and not hourly basis.  Duties and functions must be scrutinized to determine the precise nature of an employee’s job function to ensure proper classification.