The Latest in Multi-Jurisdictional Compliance with Employment Application Laws | Ogletree, Deakins, Nash, Smoak & Stewart, CP

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A growing number of states and municipalities are limiting the types of inquiries employers can make when hiring, creating concerns about what employers can or should include in job applications and Jobs.

This upward trend comes as respondents to the recent survey report by Ogletree Deakins, Strategies and Benchmarks for the Workplace: Ogletree Survey of Key Decision Makersindicated that cross-jurisdictional compliance is one of the top three most challenging issues for employers in today’s competitive hiring and retention climate.

Criminal Box Prohibition Laws

Colorado, Maine and Des Moines, Iowa are the latest examples of jurisdictions that have passed no-box-on-the-books laws that prohibit employers from asking about a job applicant’s criminal history. application stage of the hiring process. In the United States, a total of 15 states, the District of Columbia and more than 20 municipalities have currently passed such laws.

The no-box laws are intended to provide candidates with criminal records the opportunity to progress further through the hiring process based on their merits, rather than being screened out based on their criminal history. Most of these laws allow employers to inquire about criminal history at some point in the hiring process, but the jurisdictions vary by time. Des Moines, for example, does not allow an employer to investigate an individual’s criminal history before making a conditional job offer.

These variations may mean that employers must use different job applications for different jurisdictions or use applications with state-specific exceptions informing applicants that they are not required to answer certain criminal history questions. However, New York and Philadelphia prohibit having a job application with such state-specific exclusions, and instead say that employers cannot ask about criminal history at all.

Salary history prohibitions

A growing number of jurisdictions are enacting laws prohibiting employers from inquiring about past wages or salaries of job applicants as a condition of a job application, interview, or job offer. These measures are part of broader pay equity laws aimed at preventing candidates from being offered less than what they would otherwise have been offered or to which they would otherwise be entitled for a new position because they may have been underpaid in their previous positions.

Fifteen states and nine municipalities have some sort of salary history ban. Rhode Island is poised to be next. Effective January 1, 2023, the state will prohibit employers from asking about an applicant’s salary history before extending a job offer, including job applications. After an employer makes an offer, employers can ask about previous salary, but only if the candidate voluntarily raises the subject of previous salary and the information is used to support a higher offer.

Similar to no-box laws, New York City and Philadelphia do not allow salary history inquiries on an application or applications with disqualifications.

Pay transparency laws

In addition to compensation history bans, there is a growing body of salary transparency or salary disclosure laws, requiring employers to include the expected salary or a salary range for a position in job postings. . Although these laws do not directly affect job applications, they are closely related to wage prohibition laws. Under these laws, job postings could be considered unlawfully misleading if employers offer less than what was posted.

Colorado’s is the broadest with a requirement that any job posting for work that could be done in Colorado must include the salary range on the job posting. So a remote position that could potentially be filled and performed by someone in Colorado is covered by law and requires the job posting to disclose a “pay range” with the minimum and maximum salary for the position. .

Effective November 1, 2022, New York City will make it an “unlawful discriminatory practice” for employers of four or more employees, and at least one employee in New York, to post job openings, internal promotions or transfer opportunities without disclosing salary. ranges. The ranges cannot be unlimited and must include a minimum and maximum salary for the position.

Employers may want to consider these growing no-box and payment transparency laws when reviewing their hiring practices, particularly if they are hiring online for positions that might be employed anywhere in the country.

Key points to remember

These increasing restrictions on what employers can request in job applications or pay transparency requirements in job postings impose compliance challenges for employers, especially those involved in job searches. at national scale. Employers may wish to review their current job applications and job offers to ensure they are inquiring about any criminal history or previous wages in violation of state and local laws. Employers may also consider using different job applications for different jurisdictions or including state-specific exclusions, although this may raise compliance issues in some jurisdictions.

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