“What’s your current salary?” may seems like an innocuous question
that you might ask while interviewing a potential new employee, but the law may
restrict your right to ask that question.
Why? The law suggests that the
question could be discriminatory. An answer too low could impact what the
employer would pay as a fair salary for the position. An answer too high could
prevent the employee from being hired. Based on the disparity between what
women and men make in the workplace for the same jobs, the answer to that
question may also perpetuate the unfairness of the division between what the
employee may be entitled to earn for the job performed.
Evidence suggests that salary
history may follow an employee from job to job and, therefore, disclosing that
information may only maintain the gender pay gap that exists in the workplace.
Such a restriction is scheduled to
take effect in New York in 2018. Massachusetts would be next and a number of
other states (Illinois, Maine, Maryland, New Jersey, New York, Pennsylvania,
Rhode Island, and Vermont) may follow.
The safest approach recommended to
businesses is to price the position—not the person. It should not be relevant
what the person made in the past to apply for that position. By posting the
salary range of the job, the risk of the conversation coming up during the
interview is lessened, thereby avoiding the risk of liability to the business
that their hiring decision was based on the applicant’s previous salary.
There are 26 states that have adopted the policy to “ban the box”,
meaning that companies cannot include in their initial interviews or job
applications the question of whether the applicant has a criminal record. The
states are California, Colorado, Connecticut, Delaware, Georgia, Hawaii,
Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri,
Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode
Island, Tennessee, Utah, Vermont, Virginia, and Wisconsin.
The concept, otherwise known as
“fair chance”, requires companies to forgo a preliminary request for
any criminal history on an applicant until after the first interview. In this
way, the stigma of a criminal record can be avoided until later in the hiring
process. Certainly, under the law, even if the question cannot be asked
initially, the business is permitted to make a conditional job offer to the
applicant after a criminal history check has been performed. At that point, the
business can decide whether the conviction history is directly related to the
job. If so, the company can withdraw the offer, but it must also explain how it
evaluated the criminal record against the job to demonstrate why the hiring
decision was not discriminatory. Further, the company must assess the
applicant’s evidence of rehabilitation and subsequent achievements in light of
how long ago the offense occurred.
Of course, it can be argued that
these various hiring restraints may have a negative impact on job growth. At
the same time, it may be that these restrictions only demonstrate fairness in
the workplace. Either way, if you are doing any hiring in the states listed,
you need to make sure you know the law and ensure that your job application has