Ann: “Cutting Edge, this is Ann.”
Customer: “I got application problems. Is it true that I can’t ask if someone has been convicted of a crime on the application? And that sometimes I can’t even ask what they used to earn?”
Ann: (Bites into her donut, coffee in hand) “It’s true, in many jurisdictions there’s Ban-the-Box, and Salary bans are gaining traction nationwide as well.”
Customer: “Van the Fox? Stop mumbling.”
Ban-the-Box. There are a couple major legislations that will impact you at your application level. Most folks (although not everyone) has heard of Ban-the-Box. The “box” in question being the check box most job applications used to have, where an applicant would check it if they had been involved in a crime. Language for the box was all over the place: Have you been arrested? Have you been convicted? Of a felony? A misdemeanor? Have you been charged? Here are two tiny lines one space apart for you to explain what happened in detail.
Its legislation borne out of the work of All of Us or None, 33 states and over 150 cities and counties have adopted what is widely known as “Ban-the-Box” or Fair Chance Initiatives, so employers consider a job candidate’s qualifications first—without the stigma of a conviction or arrest record.
You can still ask about an applicant’s criminal history. The most conservative approach is to wait until after the job offer has been extended. The criminal question must be carefully drafted to take into account state laws and the EEOC Guidance on criminal records. Numerous states have also imposed restrictions on the extent of the questions or asking about certain types of offenses that have been expunged. Carefully review your appropriate state laws. You can visit www.NELP.org (National Employment Law Project) for an updated list.
Salary History Ban: State and local governments are increasingly adopting laws and regulations that prohibit employers from requesting salary history information from job applicants.
The laws are aimed at ending the cycle of pay discrimination and some go further than merely banning pay history questions. A few also prohibit an employer from relying on an applicant’s pay history to set compensation if discovered or volunteered; others prohibit an employer from taking disciplinary action against employees who discuss pay with coworkers.
Currently, 11 states and nine localities have enacted salary bans. Interestingly, salary bans are prohibited in Michigan and Wisconsin. Check to see where your jurisdiction falls in this landscape.