In cities and states across the country, new legislation is aimed at leveling the playing field for applicants to find gainful employment. Legislators are banning employers from requesting information from applicants that reveal past criminal history and/or salary history in a wave that’s extending beyond local jurisdictions. How will these new laws affect your hiring protocols? You may be surprised to find they will impact you, whether you’re in one of their jurisdictions or not.
Ban the Box
Ban the Box laws prohibit employers from requesting arrest and conviction history information on applications to give candidates equal footing for a chance to interview. The belief is that, once an applicant meets with a hiring authority one-on-one, he has a better chance to tell his story, demonstrate that she has been rehabilitated, and improve the chance at employment.
Following an interview, the issue may be discussed, but within limits. If the arrest/conviction was for an offense that is not applicable to the work, in most cases, it should not be considered a reason to disqualify.
Ban the box initiatives for private employers have been enacted in ten states and 150 jurisdictions so far, with legislation pending in many others. For public employers, 30 states have enacted ban the box policies, with many others pending.
EEOC Guidance
The laws are meant to align with the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued by the EEOC in 2012. The guidance does not prohibit employers from using criminal records in their hiring process; it outlines best practices to assure the records do not create disparate impact on protected classes.
The Guidance recommends employers remove self-disclosure questions on applications, avoid making employment decisions solely on arrest or conviction records, and conduct individualized assessments before rejecting an applicant or terminating an employee because of a conviction.
Whether your company is adhering to the guidelines may not currently be a violation in your state/municipality, but many major job sites are changing the way they list openings to comply with local law as well as guidance from the EEOC. Sites like Glassdoor announced last year they will no longer permit employers to post listings that run afoul of the guidance; other major sites are expected to follow suit.
In a tight applicant market, providing ex-offenders an opportunity to argue their case for employment may be good advice. As business looks to an ever-shrinking applicant pool, previously overlooked candidates may prove a sound investment in time and resources.
Salary Bans
New initiatives in California, Oregon, New York City, Philadelphia and other sites ban employers from requesting salary information — some at any point in the hiring process and others until an employment offer is extended.
These laws are aimed at reducing pay inequality that may be based on gender, race or other characteristics. The law intends to address the belief that workers who have experienced wage discrimination in the past will continue to do so if a new offer is based on previous earnings, thus continuing a cycle of discrimination. In some jurisdictions, the law prohibits asking for salary history; others go further, prohibiting employers from using the information even if they uncover it inadvertently.
Proponents of the laws believe businesses should set pay rates for work being offered irrespective of the salary history of the applicants. They cite examples of two people being hired for the same work: one may be coming from a previous job at $10 per hour, another at $12 per hour. An employer may offer each candidate a $2 per hour increase, at $12 and $14 per hour starting rates. But since they are both doing the same work at the same entry-level, the laws argue they should be paid the same rate.
Many large job sites, like Google for Jobs, have begun incorporating salary ranges into their postings and search features. As more follow suit, candidates may come to expect a listed salary range before submitting their application.
An unexpected benefit of the salary history ban legislation may be a time-saver for HR and hiring professionals. Listing salary ranges in a job posting may result in self-screening from applicants. If the salary is too low to consider, they’ll likely not apply for the opening, saving recruiters the time to pre-screen or conduct a phone interview. In an applicant-driven market, recruiters are looking to optimize their time with available talent, not waste it on candidates that will not ultimately accept an offer.
Conclusion
Whether or not you’re in a jurisdiction that bans requesting salary or criminal history, the trends may benefit your institution in ways you hadn’t considered. If new laws are coming your way, it might be wise to start planning for compliance sooner, rather than later.
