This article was updated on 6/10/2019.
When your small business is hiring, it takes awareness and action to avoid the more common legal missteps.
Take the all-important job application. In the article, “Does Your State Ban the Box with Job Applications? What You Need to Know,” we discussed the trend of states restricting employers from asking job candidates about their criminal history. This movement shows no signs of slowing down, with 34 states (and over 150 cities and counties) now upholding laws to reduce hiring barriers for individuals with criminal histories.
At the same time, there’s been up uptick in states restricting salary history inquiries. Together, these “fair chance” hiring laws are designed to reduce discrimination in hiring, requiring careful compliance from employers through state-specific job applications.
Here are some important developments regarding both types of hiring-related restrictions, including recent enforcement in Massachusetts.
On May 6, 2019, Massachusetts Attorney General Maura Healey announced agreements reached with 19 businesses who violated state law by asking questions about applicants’ criminal histories on job applications. As a result of the statewide investigation, two employers were fined $5,000 and told to comply, while 17 other received warnings. The ban the box law was first enacted in 2010 as part of a legislative movement to reform the state’s criminal record information (CORI) system.
On March 13, 2018, Washington became the latest state to “ban the box” from job applications.
Like ban the box legislation that has come before it, the Washington law doesn’t prohibit an employer from running a background check on prospective workers. Instead, you can’t inquire about an applicant’s criminal record until the job interview — or, in some cases, after a position has been offered to the applicant. However, the bill exempts certain positions, such as those involving work with children.
Regarding the Washington Fair Chance Act, Governor Jay Inslee said, “People who have served their time need to have a chance to be employed again.”
To date, five states (and a handful of cities) now prohibit employers from asking applicants about their salary history. The legislation attempts to minimize unequal pay between men and women, which often stems from basing current salary discussions on previous wages. Specifically, affected employers can’t ask, “What is your starting/ending rate of pay?”
Although Massachusetts was the first in the nation to pass a salary history ban, the amendment to the Massachusetts Equal Pay Act (MEPA) became effective July 2018. The MA legislature unanimously passed the bipartisan bill in July 2016, and Governor Charlie Baker signed it a month later. The law – which requires compliance throughout the entire hiring process, including the job application and interview stages — covers most MA employers, and applies to full-time, part-time, seasonal, per-diem and temporary workers.
On May 11, 2018, Vermont became the fifth and latest state to issue a bill prohibiting employers from asking job applicants about salary history. Like Massachusetts, the state ban took effect on July 1, 2018.
With these developments, it’s more important than ever to avoid generic job applications, which are widely available through many HR forms providers. These “one size fits all” forms are notorious for disregarding ban the box and other state-specific requirements.
Instead, you should rely on the Job Application Smart App to ensure you’re working with a fully compliant, state-specific job application. It includes questions prewritten by attorneys and HR experts, so you can be confident you’re never asking something that could get you in legal trouble. Plus, as fair chance hiring laws continue to grow, you can count on us to keep you updated on the latest states to ban criminal and salary history inquiries.