Tag: interviewing

Salary History Ban

New York Imposes Salary History Ban

On July 10, 2019, New York Governor Andrew Cuomo signed legislation imposing a broad salary history ban on employers statewide. Under this new law, New York employers cannot rely on a job applicant’s prior compensation in setting their pay. In fact, employers cannot even ask about applicants’ prior wages or salaries. There is a slight exception for situations where the applicant relies on their past compensation to negotiate a higher pay rate.

The law also applies to instances of promotion of current employees.

The terms of the New York salary history ban are in a new section 194-a of the state’s Labor Law. These restrictions will take effect in six months, on January 6, 2020.

Prohibited Salary History Inquiries

Under the new law, New York employers may not, either orally or in writing, “seek, request, or require the wage or salary history from an applicant or current employee as a condition”:

  • to be interviewed,
  • of continuing to be considered for an offer of employment, or
  • of employment or promotion.

In fact, employers seemingly cannot seek the salary history of any applicant or current employee from anyone (i.e., the applicant/employee, their employer, or an agent of the employee) for nearly any purpose.

Exceptions

The law does provide two express exceptions to the general salary history ban.

Confirmation in Negotiations

First, employers may confirm wage or salary history “only if at the time an offer of  employment with compensation is made, the applicant or current employee responds to the offer by providing prior wage or salary information to support a wage or salary higher than offered by the employer.”

Compliance with Other Laws

The New York salary history ban legislation allows that it does not override any pre-existing federal, state, or local law that “requires the disclosure or verification of salary history information to determine an employee’s compensation.” Such laws are not prevalent anyway, however.

Use of Salary History Information

Beyond restrictions on obtaining compensation information, the law restricts employers’ use of it if somehow obtained.

The law is clear that applicants or employees may voluntarily provide information about their current or past compensation. But, except in negotiations with employees over possibly increasing salary or wages, employers can’t use the information.

Applicants

The salary history ban broadly prohibits employers from relying on the wage or salary history of an applicant both in determining whether to make a job offer and in setting their wages or salary.

Current Employees

For current employees, the employer obviously knows their current salary. However, the law specifically prohibits employers from refusing to interview, hire, promote, or otherwise employ or retaliate against current employees (as well as job applicants) based on prior wage or salary history.

Employers also may not refuse to interview, hire, promote, or employ anyone for refusing to provide salary history information.

Consequences of Violating Salary History Ban Law

Applicants or employees can sue employers to recover any damages resulting from a violation of the New York salary history ban. Damages would likely include lost wages, which could be substantial, especially where the employer improperly refused to hire the person altogether.

Successful plaintiffs can also recover their attorneys’ fees.

Public Awareness Outreach Campaign

Interestingly, the law concludes with a requirement that the New York Department of Labor must conduct a “public awareness outreach campaign” about the new salary history ban. This must include placing information on the DOL’s website and other efforts to inform employers about the new law.

What Should New York Employers Do Now?

Notably, this is only one of a series of recent legal amendments that will impose new restrictions on New York employers. Companion legislation will also increase liability for pay disparity discrimination.

Fortunately, employers have some time to prepare for the new laws. You should seriously consider no longer asking about current/past pay in hiring now. That will not only help prepare your business for 2020. It might also help reduce the risk of litigation under the new pay equity rules. They take effect in October 2019.

Together, the new laws push employers to pay all employees based on the nature of the job more than on what a particular employee would be willing to receive. This will require some degree of a mindset shift regarding compensation in many workplaces.

 

The times are changing! Make sure you don’t miss our other updates on New York employment law.

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Criminal Records Background Check Webinar

Criminal Records & Employment Background Checks (Webinar Recap)

On July 25, 2018, I presented a complimentary webinar called “Criminal Records & Employment Background Checks.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Ban-the-Box Laws
  • Fair Credit Reporting Act Compliance
  • Discrimination Claims
  • And more

The webinar focuses on New York employers. All topics covered potentially apply to public and private organizations, including governmental entities and non-profits.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Criminal Records & Employment Background Checks”

There are many procedural requirements related to the use of criminal records in hiring. Even if you’re already using background checks, you should make sure you’re following all the right steps.

The penalties can be severe if you miss any required elements. Or if you improperly exclude a candidate based on a criminal conviction.

Learn how to cover your legal bases while using criminal records in hiring here.

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Job Interviews

Don’t Ask These Questions During Job Interviews

Various federal and state laws affect what questions employers may ask during job interviews. These laws are designed to prevent employment discrimination.

Here are some questions that you should NOT ask in most cases. There are many more, some of which depend on what state or locality you are in because laws differ.

Prohibited Questions

Age

  • How old are you?
  • What is your date of birth?
  • When did you graduate high school?

Disability

  • Do you have a disability?
  • Have you ever had a drug or alcohol problem?
  • Have you ever been treated for any diseases?

Family

  • Are you married?
  • Do you have kids? Plan to?
  • Are you pregnant?
  • Do any of your family members have any serious medical conditions?

Race/National Origin

  • What race do you identify with?
  • What country are you from?
  • Where were your parents born?
  • What is your native language?

Religion

  • What church do you go to?
  • Do you pray?
  • Do you observe any religious holidays?

Permissible Questions

By contrast, here are some questions that employer generally may ask, if relevant, during job interviews:

  • Are you 18 years or older?
  • Have you ever been convicted of a crime?
  • Does your spouse work here?
  • Are you eligible to work in the United States?
  • What schools did you attend?
  • What degrees or certifications have your earned?
  • Do you speak (language used in job)?
  • How long have you lived in this area?

Subtle Differences Matter

In some cases, the precise wording of the question makes all the difference.

For example, it’s okay to verify that someone is old enough to work, but not acceptable to ask how old they are. However, if it is clear that the person is still young enough that availability to work may depend on their precise age, then asking the age directly may be okay. This would usually only apply to the youngest workers, where child labor laws apply.

Similarly, most questions about a candidate’s family situation are risky. They could fall under various protected categories, including sex, disability, genetic information, religion, etc. However, employers can ask during job interviews whether the candidate has any family members that already work at the company. Some employers even have anti-nepotism policies or other restrictions on multiple family members working together. Such rules usually do not violate any laws if applied consistently.

Job Interviews Should Focus on Ability To Do the Job

The best way to avoid asking a problematic question during a job interview is to focus solely on ability to perform the job.

Obviously, there are many different jobs, so there is no single right way to interview candidates. But all interviewers should try to ignore age, sex, race, national origin, religion, etc. That doesn’t mean they can completely overcome stereotypes, subtle biases, etc. But at least they need to keep that off the table during job interviews.

Check for Discriminatory Impact

Especially where a relatively large number of employees are hired into similar positions, hiring decisions can be reviewed statistically to see if there are any discriminatory trends. If a disproportionate number of applicants of a certain race, sex, or age are being hired into the company or particular jobs, then further analysis may be warranted. In some cases, this may show that certain interviewers are asking the wrong questions.

Smaller employers or those with less turnover can’t test for statistical significance as reliably. But since there are relatively few positions, it is easier to look at each hiring decision specifically to check whether any potential discrimination has filtered in to the job interviews.

Most often, even if an interviewer has crossed the line by asking an inappropriate question, no significant harm will occur. Counsel the interviewer on the error and instruct them how to avoid making the same mistake in the future.

If, however, an applicant or employee does make a discrimination complaint, then make sure you respond appropriately. For starters, read my article on Responding to Discrimination Complaints.