The days of the “one size fits all” job application may soon be coming to an end. As federal, state, and local governments increasingly heighten employer hiring process requirements, national employers must be diligent to avoid getting tripped up by the varying rules across different locations. This post will discuss three hiring requirements that are increasingly leaving companies exposed to risk.
“Ban the Box” Laws
State and local governments have continued to pass “ban the box” laws, which prevent employers from inquiring into applicants’ criminal history at the initial stages of the hiring process. As of May 2017, nine states and fifteen cities and counties have adopted a ban the box law that applies to private employers. While Texas is not among those states, last year Austin became the first city in Texas to ban the box for private employers.
But not all ban the box laws are the same. For example, while the most stringent ban the box laws prohibit inquiries about criminal history until after a conditional offer of employment, others allow such questions after an initial interview. Accordingly, employers must make the difficult decision to individually tailor their hiring policies to the specific jurisdictions in which they operate, or to maintain a national hiring policy that complies with the most strict local laws. Either way, under almost every ban the box law, including broad questions about criminal history on an employment application will be a violation.
The past two years have produced groundbreaking changes to equal pay laws on both the state and federal level. New York, Maryland, California, and Massachusetts all minted new equal pay laws that fundamentally changed how equal pay claims are handled in those states, lowering the bar for a viable pay equity law suit. On the federal level, the EEOC passed an expansion to Employer Information Reports (or EEO-1 reports), which will require many private employers to submit annual pay data detailing racial and gender breakdowns of each job category. Employers must complete their 2017 EEO-1 reports with this additional pay data by March 31, 2018.
What do these changes to equal pay mean for employers aiming to lower legal risk? First, employers who inquire about applicants’ salary histories at the application stage may have to update their applications and hiring processes. Indeed, a growing number of state and local laws explicitly ban questions about an applicant’s salary history. Further, in light of the recently increased viability of pay equity claims at the state level, employers should conduct internal pay equity audits to ensure their hiring processes are not exacerbating pay inequity within their company.
Prohibited Medical Inquiries
Under the Americans with Disabilities Act (ADA), a company’s right to make disability-related inquiries changes across different stages of the hiring process. Prior to an offer of employment, an employer may not make any disability-related inquiries or conduct medical examinations, regardless of whether they are related to the job. Once employment begins, employers may make disability-related inquiries or conduct medical examinations only if they are job related and consistent with business necessity.
Because of this framework, job applications that include disability-related inquiries are in violation of the ADA. Employers should refrain from making disability-related inquiries or requesting medical examinations as part of their hiring process. Off-limits pre-offer questions include not only direct inquiries as to whether an applicant has a disability, but also inquiries about an applicant’s genetic information, prior workers’ compensation history, or prescription medications. Employers seeking to minimize legal risks with their job applications should eliminate any questions that ask or relate to an applicant’s possible impairment.
In short, employers seeking information about employees’ criminal history, salary history, or disabilities should proceed with caution. The current legal frameworks surrounding ban the box, disability-related inquiries, and pay equity all suggest that when it comes to asking sensitive questions at the pre-offer stage in the hiring process, less is more. To avoid liability, employers should contact legal counsel and conduct a job application check-up.