Tag Archives: applicant

Addressing Some of the Confusion Regarding California’s New Salary History Ban

California employers – Are you confused about what information you are (and are not) allowed to request under California’s new salary history ban law?  Below are answers to some common questions regarding compliance with these new requirements.

What is the new salary history ban?

California’s salary history ban is set forth in newly created California Labor Code section 432.3. Under this code section, California employers are prohibited from “relying on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.”  In other words, California employers cannot ask job applicants about their salary histories.

Can a job recruiter provide an employer with a candidate’s salary history?

No.  The law expressly prohibits employers from seeking an applicant’s salary history “through an agent,” which would include an outside recruiter.  To protect themselves, employers should take steps to ensure that their recruiters (whether internal or external) are not seeking salary history information from candidates as your company can be held liable for these violations.

Can I ask an applicant what benefits they received from a previous employer?

No.  The law expressly prohibits employers from seeking an applicant’s salary history information, which includes “compensation and benefits.”  This definitely means that employers cannot ask an applicant about the value of a benefit package.  Whether an employer can ask if there are any benefits the applicant would be “losing” by accepting a position with your company is an issue that is yet to be determined.  The law is not clear on the scope of the information a company is prohibited from seeking relating to benefits.

Can I still verify an applicant’s salary history after an offer of employment has been extended?

Yes.  The state law does not prohibit employers from contacting an applicant’s previous employer(s) and verifying salary history after an offer of employment has been made.  However certain localities (like San Francisca) prohibit employers from disclosing the salary history of a current or prior employee to a prospective employer with having first obtained written authorization from the employee.

Am I required to provide applicants with a salary range for a position?

Yes – if the applicant makes a “reasonable request” (either oral or written), the employer is required to provide a “pay scale” for that position to the applicant.  In light of this requirement, it is recommended that employers prepare pay scales for positions for which they are hiring prior to posting open positions.  When explaining this pay scale to applicants, consider explaining to the employee that the salary for the position will be based on factors such as qualifications and experience.  Finally, all requests for a pay scale (and the company’s response to those requests) should be documented.

What if an applicant voluntarily provides his salary history?

The law does not prohibit applicants from “voluntarily and without prompting disclosing salary history information to a prospective employer.”  If this does happen, it is recommended that employers document the voluntary disclosure, but still take steps to ensure that this disclosure is not the sole factor used in determining the individual’s salary if that individual is hired.

Washington State Supreme Court Expands the Protections of the Washington Law Against Discrimination

In a new case (Zhu v. North Central Educational Services), the Washington State Supreme Court has held that the Washington Law Against Discrimination protects job applicants from “retaliatory discrimination” (i.e. an employer who refuses to hire an applicant in retaliation for the applicant opposing discrimination in a prior job).

The Case

In this case, the plaintiff had previously been a math teacher in the Waterville School District. In 2010, the plaintiff sued the District for race discrimination and retaliation.  The case was ultimately settled and, as a part of the settlement, the plaintiff resigned from his teaching job.

Following his resignation, the plaintiff applied for a position with North Central Educational Services District No. 171 (an agency that provides cooperative and informational services to local school districts – including the Waterville School District).  The hiring committe for North Central Educational Services District was aware of the plaintiff’s past lawsuit and ultimately, the plaintiff was not hired for the position. Continue reading Washington State Supreme Court Expands the Protections of the Washington Law Against Discrimination

NEW LAW: Salary History Questions are banned in New York City

The New York City council recently passed a bill (Int No. 1253-A) that, when it goes into effect on Tuesday, October 31, 2017 (180 days after the bill was signed on May 4, 2017), will ban employers from considering a job applicant’s salary history when making hiring decisions (whether to hire the applicant and the salary to pay the applicant).

Specifically, the new ordinance prohibits employers from doing the following:

  • Asking questions relating to a potential employee’s prior salary; and
  • Searching for former salary, benefits, or other compensation information through any publicly available source.

Employers are still permitted to:

  • Consider salary, benefits, and other compensation information if an applicant reveals this information voluntarily and without prompting; and
  • Discuss expectations regarding salary, benefits, or other compensation.

It is recommended that New York City employers review their employment applications and verify that any inquiries about salary history are removed. In addition, any interview question templates should be reviewed and questions relating to salary history should be removed. Finally, all employees who participate in interviews should be trained not to inquire about salary history.

NEW LAW – Salary History Questions are banned in San Francisco

The City and County of San Francisco recently passed a new ordinance that, when it goes into effect on July 1, 2018, will ban employers from considering a job applicant’s salary history when making hiring decisions (whether to hire the applicant and the salary to pay the applicant).

Specifically, the new ordinance prohibits employers from asking any questions about an applicant’s salary history. It also prohibits employers from disclosing a current or former employee’s salary history without the employee’s authorization. The only exception to this disclosure ban is if the employee’s salary history is publicly available or is subject to a collective bargaining agreement.

After the law goes effect on July 1, 2018, employers receive a one-year “adjustment period” where the city will issue written warnings and notices to offending employers, but will not issue any monetary penalties. However, starting July 1, 2019, San Francisco employers may be subject to fines for violation of this law.

It is recommended that San Francisco employers review their employment applications and verify that any inquiries about salary history are removed. In addition, any interview question templates should be reviewed and questions relating to salary history should be removed. Finally, all employees who participate in interviews should be trained not to inquire about salary history.

California expands criminal background inquiry prohibition

Currently, California Labor Code section 432.7 prohibits employers from asking applicants about arrests, convictions that have been expunged, or about misdemeanor marijuana possession charges more than 2 years old. However, on January 1, 2017, that prohibition will be extended to an applicant’s juvenile records.

Recently, California Governor Jerry Brown signed AB 1843 into law. This bill amends California Labor Code 432.7 and prohibits inquiries into “an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

While the term “conviction” is not defined, the statute does clarify that a “conviction” does not include “any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.”

It is recommended that California employers review any conviction inquiries that might be contained on job application or in interview question templates and ensure that such conviction inquiries are modified to exclude juvenile crimes.

State Limits Background Checks

http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S91v6.pdf

North Carolina has taken steps to prevent employers from using applicant criminal histories during the hiring process.  Beginning December 1, 2013, an employer may not require on an application or in an interview, an applicant to disclose information related to an expunged arrest, criminal charge or criminal conviction, and may not knowingly inquire about it.  In response to any question regarding any arrest or criminal charge, the applicant need not include any information concerning arrests, charges or convictions that have been expunged.  Employers violating the law will be subject to a warning for the first violation and civil penalties up to $500 for subsequent violations.  Interviewing managers should be trained on the new law as to not put the employer at risk.

Utah Protects Social Media Privacy

http://www.le.utah.gov/~2013/bills/hbillenr/HB0100.pdf

Utah became the fifth state to prohibit employers from requesting that applicants or employees disclose passwords to their personal internet accounts.  The Internet Employment Privacy Act (IEPA) defines a personal internet account as one used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer.  Employers are also prohibited from taking adverse action against an employee or applicant for failing to disclose such information.  Given that these prohibitions are a growing trend, and one which Congress is contemplating, employers throughout the country would be prudent to review their practices and steer clear of an employee or applicant’s social media account.