Tag Archives: job application

Salary History — Time to Update Job Applications, Again

Contributed by Noah A. Frank, February 6, 2017

By now, employers should well know that they may not make unlawful inquiries of applicants based on protected classes (e.g., age, religion), as well as arrest history. In the past few years, we’ve seen an increase in legislation (and litigation) that impact employers’ ability to gather information and check an applicant or employees’ background, such as state and local “ban the box” laws, which generally prohibit employers from asking about criminal convictions until an applicant is made a conditional offer of employment. And, even when and where checking an applicant or employee’s background is permissible, employers are required to comply with the Federal Fair Credit Reporting Act and other applicable federal, state and local laws which limit and set strict requirements that must be complied with when doing background checks.

wageWhat’s New?

On January 23, 2017, Philadelphia’s newest restriction was signed into law, restricting an employer’s ability to ask applicants about their wage and salary history, effective May 23, 2017.  Philadelphia Bill No. 160840, amending Chapter 9-1100 of the Philadelphia Code. Except as specifically authorized by another law permitting disclosure or verification of wage history or “knowingly and willingly” disclosed by an applicant, this ordinance makes it unlawful for an employer to: inquire into or require disclosure of an applicant’s wage history, condition employment or an interview based on such disclosure, or even use information gained from the former employer at any stage of the employment process, including negotiating an employment agreement!!

This Is Significant!

First, Philadelphia has been on the forefront of employment regulations, and is often followed by other cities, so employers should be prepared for the possibility that their state, county, or city may adopt or implement similar rules.

Second, laws precluding inquiry into salary and wage history substantially inhibits salary negotiation, and may even encourage applicant dishonesty. An employer would be unable to verify an applicant or employee’s statement of their prior wages (for example, by reviewing a recent W2 or paystub from a prior employer) in reviewing and determining what salary or wage should be offered in order to meet-or-beat an applicant’s current compensation.

Third, as the ordinance makes it unlawful to “condition employment” on such wage history, the discovery of falsified information later on may not be a valid basis to protest unemployment or cut off damages in a civil matter – unlike in states where falsification of application and employment documents may be considered misconduct that could subject the employee to discipline up to and including termination (like Illinois).

What To Do About This

The new Philadelphia ordinance will require that Philadelphia employers make changes to their job applications and other onboarding materials and practices to limit inquiries into wage/salary history. Additionally, it serves as a reminder to all employers, no matter where they are located, of the importance in regularly reviewing their job applications and other onboarding materials and practices to ensure that they comply with the most current labor and employment laws on a federal, state, and local level, including but not limited to laws limiting employer inquiries into statuses protected by law such as wage/salary history, age, marital, housing status, military statuses, and credit/criminal conviction history. Competent employment counsel should be consulted for an audit of employment forms, policies and practices to ensure that the company is doing “it” right.

EEOC Lawsuit Reminds Employers That Pre-Employment Health Inquiries Are Off-Limits

Contributed by Steven Jados, June 15, 2016

A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.

The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA”), and the Genetic Information Non-Discrimination Act of 2008 (“GINA”).

two insurance forms on a clipboard with a pen.

The job application included a three-page health history that asked 43 questions. The top page of the history stated: “All questions must be answered before we can process your application or change authorization”—potentially indicating that applications would be rejected for failure to provide a complete medical history. The history sought information on virtually any condition an applicant might have, from allergies to varicose veins. For each “yes” response an applicant gave, indicating a current or past medical diagnosis, the history sought additional information, including the dates symptoms presented, whether hospitalization was necessary, and the name and address of the applicant’s doctors and hospital.

It did not stop there. The history inquired about current medications, including dosage, the reasons for prescription, and the name and address of the prescribing doctor. The history concluded by asking applicants to disclose—again in complete detail—whether any surgery or medical testing had been recommended, and to provide recent blood sugar and blood pressure testing results.

Considering the ADA generally prohibits employers from conducting pre-offer medical examinations or inquiring into the existence or severity of an applicant’s disabilities, it was clear that this application violated the ADA. The fact that the man had not actually applied for a job was of no consequence. The ADA affords protection to persons who are deterred from applying for a job because of discriminatory practices or policies.

Additionally, because the health history required disclosure of consultations with “‘a doctor, chiropractor, therapist or other health care provider within the past 24 months’” and identification of “whether ‘future . . . diagnostic testing . . . has been recommended or discussed’ with [a] medical provider,” the application violated GINA by soliciting information that might reveal an applicant’s family history or other risk factors for certain medical conditions.

The consent judgment included a permanent prohibition from requiring any pre-offer medical examinations or pre-offer medical inquiries and a payment of $10,000.

This case serves as a reminder that an employer may not ask a job applicant medical questions before making a job offer. An employer may ask a job applicant if they can perform the essential functions of the job. The essential job functions should be listed in a job description that is provided or made available to the applicant.