Tag Archives: Employment Applications

UPDATED: California Bans Applicant Salary History Inquiries

Contributed by Noah A. Frank, November 8, 2017

Add salary history to the growing list of topics that may be off limits on employment applications and during interviews, depending on where your business operates.

32420632 - law gavel on a stack of american moneyCalifornia joins a growing list of jurisdictions banning salary history inquiries. On October 12, 2017, California Governor Brown signed Assembly Bill 168, which prohibits employers from seeking or relying upon applicants’ salary history and using such information as the basis for establishing compensation. The new law takes effect on January 1, 2018.

Like ban-the-box legislation (banning inquiries into criminal conviction history) and sick leave ordinances, this is likely the start of a national trend enacted on a jurisdiction-by-jurisdiction piecemeal basis.  California joins Massachusetts, Oregon, and Delaware, along with several municipalities, such as New York City, Philadelphia, Pittsburgh, and U.S. territory Puerto Rico, to enact such legislation in an emerging national trend.  Indeed, since we reported on Illinois’s forestalled HB1462 amending the Equal Pay Act in September, the Illinois House has overridden the governor’s veto, and the bill is on its way to the Illinois Senate for similar consideration.

The Basics

Like the other jurisdictions’ laws, California’s legislation is meant to remedy past gender-based compensation discrimination.  However, given the broad language, this bill will apply to all protected classes such as (and not limited to) race, religion, military status. Under AB-168, all employers in the state of California:

  1. May not inquire directly or indirectly into an applicant’s compensation and benefits (unless publicly available as provided by other laws).
  2. May not rely on salary history as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
  3. Must provide the pay scale for the position to an applicant applying for employment “upon reasonable request.”  Note that this is a fairly unique provision in California’s law (at least for now).
  4. May not allow prior salary alone to justify any disparity in compensation.

Notably, if an applicant “voluntarily and without prompting discloses” compensation history, the employer may then consider it as a factor in determining the salary to offer an applicant.

Compliance Made Easy

In light of these trends in the workplace, employers must ensure that they are compliant with new and emerging laws as enacted, and to also perform routine audits – including employment forms, handbooks, policies, and templates.  As it relates to these salary inquiry laws, employers should (1) ensure job applications are compliant and do not include salary/wage inquiries, and (2) review interview questions, especially “scripts” used by management, and ensure that those conducting interviews are aware of the new unlawful inquiry.

What’s the Bottom Line on Salary History Inquiry Bans? Don’t Ask.

You may not ask applicants “how much do you currently make?” But you may ask: “how much would you like to earn in this position?” or “What are your compensation expectations?” or other similar future-oriented inquiries.

How Can Employers Reconcile the Federal Motor Carrier Safety Regulations with Growing “Ban the Box” Laws?

Contributed by Jeffrey Risch and Sara Zorich

The Federal Motor Carrier Safety Administration Regulations (FMCSR) set forth rules and regulations for employment applications involving applicants applying to drive commercial motor vehicles. (See 49 C.F.R. § 391.21).  Section 391.21 has been adopted in most states (for example, Illinois law recognizes Section 391.21 pursuant to Title 92 of the Illinois Administrative Code).

FMCSR specifically requires applicants completing a commercial driver application to (1) list all violations of motor vehicle laws or ordinances (other than parking) of which the applicant was convicted for in the prior 3 years and (2) provide a statement setting forth the details and facts of any denial, revocation or suspension of their driver’s license.

In recent years, a growing number of states, in addition to local municipalities, are passing “Ban the Box” laws that prohibit employers from inquiring into criminal convictions on their written applications for employment or at any time prior to a conditional job offer.  In fact, as of January 1, 2015, the Illinois Job Opportunities for Qualified Applicants Act (a.k.a. “Ban the Box”) bars private employers with 15 or more employees from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer has notified the applicant of his or her selection for an interview or until a conditional job offer has been made.

So how are employers supposed to reconcile Section 391.21 requirements with the limitations of inquiry into criminal conduct under local or state “Ban the Box” laws?  Employers who have job positions governed by Section 391.21 should recognize and rely on any expressed exceptions under such local or state laws.  For instance, Illinois’ “Ban the Box” law permits employers to ask about convictions on an application if “employers are required to exclude applicants with certain criminal convictions from employment due to federal or State law.” (820 ILCS 75/15(b)(1)).  However, employers must be very careful to only request information on the initial application that is specifically required under Section 391.21.

An additional hurdle for employers is that some states have anti-discrimination laws that limit otherwise permissible inquiries.  As an example, the Illinois Human Rights Act (IHRA) prohibits private employers with 15 or more employees from asking applicants about any sealed or expunged criminal record of conviction.  However, once again there is an exception to the IHRA when the request is “otherwise authorized by law.”  Since 49 C.F.R. 391.21 requires an employer to inquire about ALL violations of motor vehicle laws of which the employee was convicted in the past three years on an application, this is an exception to the IHRA and no qualifying language regarding sealed or expunged records is required.  But again, any inquiry into other types of convictions not covered by FMCSR (after selection for interview or conditional offer is made) must have the qualifying language required under the IHRA.

Bottom Line: Employers cannot follow a one size fits all approach with employment applications.  Trucking companies throughout the United States, and particularly in the Midwest, must review their applications for drivers of commercial vehicles to ensure they are complying with the requirements under federal, state and local laws.