A growing number of states and municipalities are restricting the types of inquiries employers can make during hiring, creating concerns with what employers can include or must include on job applications and job postings.
This rising trend comes as respondents to Ogletree Deakins’ recent survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, indicated that multi-jurisdictional compliance is one of the three most challenging issues for employers in this current competitive hiring and retention climate.
Criminal Ban the Box Laws
Colorado, Maine, and Des Moines, Iowa, are the latest examples of jurisdictions that have passed Ban the Box laws that prohibit employers from asking about an applicant’s criminal history at the application stage of the hiring process. Across the United States, a total of fifteen states, the District of Columbia, and more than twenty municipalities currently have enacted such laws.
Ban the Box laws are intended to provide applicants with criminal records an opportunity to progress further into the hiring process on their merits, rather than being screened out because of their criminal histories. Most of these laws do allow employers to inquire about criminal histories at some point in the hiring process but the jurisdictions vary on when that point is. Des Moines, for instance, does not allow an employer to inquire into an individual’s criminal history until after extending a conditional offer of employment.
These variations may mean that employers must use different job applications for different jurisdictions or use applications with state-specific carve-outs informing applicants that they are not required to answer certain criminal history questions. However, both New York City and Philadelphia make it unlawful to have an employment application with such state-specific carve-outs, and instead say that employers may not ask about criminal history at all.
Salary History Bans
A growing number of jurisdictions are passing laws prohibiting employers from inquiring about applicants’ prior wages or salaries as a requirement for a job application, job interview, or job offer. These measures fit into broader pay equity laws aimed at preventing applicants from being offered less than what they might otherwise have been offered or to which they otherwise are entitled for a new position because they may have been underpaid at their prior positions.
Fifteen states and nine municipalities have some sort of salary history ban. Rhode Island is set to become the next. Effective January 1, 2023, the state will prohibit employers from asking about an applicant’s wage history until after extending a job offer, including on job applications. After an employer makes an offer, employers may ask about prior pay but only if the candidate voluntarily raises the topic of prior pay and the information is used to support a higher offer.
Similarly to the Ban the Box laws, New York City and Philadelphia do not allow salary history inquiries on an application or applications with carve outs.
Pay Transparency Laws
In addition to pay history bans, there is a growing set of pay transparency or wage disclosure laws, requiring employers to include the expected salary or a compensation range for a position in job postings. While these laws do not affect employment applications directly, they are closely related to the salary ban laws. Under these laws, job postings could be considered unlawfully misleading if employers offer less than what was posted.
Colorado’s is the most broad with a requirement that any job posting for work that could be performed in Colorado must include the salary range on the job posting. Thus, a remote position that could potentially be filled and performed by someone in Colorado is covered by the law and requires the job posting to disclose a “compensation range” with the minimum and maximum pay for the position.
Effective November 1, 2022, New York City will make it an “unlawful discriminatory practice” for employers with four or more employees, and at least one employee in New York City, to post job advertisements, internal promotions, or transfer opportunities without disclosing salary ranges. The ranges may not be open-ended and must include a minimum and maximum salary for the position.
Employers may want to take these growing Ban the Box and pay transparency laws into account when reviewing their hiring practices especially if hiring online for positions that could be performed anywhere in the country.
These increasing restrictions on what employers may inquire about in job applications or requirements for pay transparency in job postings impose compliance challenges for employers, particularly for those involved in nationwide job searches. Employers may want to review their current employment applications and job postings to ensure that they are inquiring about criminal histories or prior salaries in violation of state and local laws. Employers may also want to consider using different job applications for different jurisdictions or including state-specific carve outs, though this may raise compliance concerns in certain jurisdictions.
Fifty-state resources, ban-the-box information, and sample employment applications are available in the firm’s OD Comply: Employment Applications subscription materials, which are updated and provided to OD Comply™ subscribers as the law changes.