What's The Law On The "Salary Question"?

Posted by msmessenger on Aug 1, 2017 12:00:00 AM

What’s The Law On “Banning The Box”?

“What’s your current salary?” may seems like an innocuous question that you might ask while interviewing a potential new employee, but the law may restrict your right to ask that question.

Why? The law suggests that the question could be discriminatory. An answer too low could impact what the employer would pay as a fair salary for the position. An answer too high could prevent the employee from being hired. Based on the disparity between what women and men make in the workplace for the same jobs, the answer to that question may also perpetuate the unfairness of the division between what the employee may be entitled to earn for the job performed.

Evidence suggests that salary history may follow an employee from job to job and, therefore, disclosing that information may only maintain the gender pay gap that exists in the workplace.

Such a restriction is scheduled to take effect in New York in 2018. Massachusetts would be next and a number of other states (Illinois, Maine, Maryland, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) may follow. 

The safest approach recommended to businesses is to price the position—not the person. It should not be relevant what the person made in the past to apply for that position. By posting the salary range of the job, the risk of the conversation coming up during the interview is lessened, thereby avoiding the risk of liability to the business that their hiring decision was based on the applicant’s previous salary.

Criminal History
There are 26 states that have adopted the policy to “ban the box”, meaning that companies cannot include in their initial interviews or job applications the question of whether the applicant has a criminal record. The states are California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, and Wisconsin.

The concept, otherwise known as “fair chance”, requires companies to forgo a preliminary request for any criminal history on an applicant until after the first interview. In this way, the stigma of a criminal record can be avoided until later in the hiring process. Certainly, under the law, even if the question cannot be asked initially, the business is permitted to make a conditional job offer to the applicant after a criminal history check has been performed. At that point, the business can decide whether the conviction history is directly related to the job. If so, the company can withdraw the offer, but it must also explain how it evaluated the criminal record against the job to demonstrate why the hiring decision was not discriminatory. Further, the company must assess the applicant’s evidence of rehabilitation and subsequent achievements in light of how long ago the offense occurred.

Of course, it can be argued that these various hiring restraints may have a negative impact on job growth. At the same time, it may be that these restrictions only demonstrate fairness in the workplace. Either way, if you are doing any hiring in the states listed, you need to make sure you know the law and ensure that your job application has been updated.