As of 2014, nearly 90 percent of U.S. employers asked job applicants to reveal information on an employment application about their criminal histories — have they ever been arrested and/or been convicted of a crime — but the tides are turning.
As the national movement to improve fairness in hiring grows, currently 36 states, the District of Columbia, and 150+ cities and counties have adopted “ban the box” laws, which mandate the removal of criminal history questions from employment applications. These laws help the estimated 33 percent of adults with a criminal past get a fair shot at finding work by delaying inquiries about arrests and convictions until after the employer considers the applicant’s qualifications and determines whether he or she is suited for the job.
Currently, there is no federal “ban the box” law, with a bill to pass the Fair Chance to Compete for Jobs Act of 2017 stalled in Congress. Because of this, there is a lot of disparity and confusion about what laws/policies exist and where they apply. In some locations, these laws apply only to public government positions; elsewhere, they apply to both private and public employers.
To further compound the issues, there is little consistency in stipulations for when background checks can be used in the applicant screening process, even in places where fair-chance laws are in place. For employers with a presence in multiple states, each location is responsible for complying with local laws, even if these conflict with the company’s existing hiring practices.
Capitalizing on the “ban the box” movement, some state and local governments are adopting laws and regulations that prohibit employers from requesting salary history information from job applicants, as well as preventing asking the minimum salary an applicant is willing to accept. This growing trend is part of a push to fight wage discrimination and eliminate or reduce the gender pay gap.
Four states (Delaware, Louisiana, New Jersey, and Oregon) as well as Puerto Rico led the way by enacting statewide bans for public employers in 2017, with California, Illinois, Kentucky, Massachusetts, Michigan, Missouri, Vermont, and Washington passing laws in 2018. Laws are set to go into effect in Connecticut and Hawaii in 2019. More than 20 states have proposed legislation prohibiting salary-related questions.
In February 2017, Philadelphia became the first city in the country to ban private-sector employers from asking job applicants about their salary history. Under this law, employers can be penalized if they ask salary questions on applications and during interviews. In October 2017, New York City joined Philadelphia in banning public and private employers from asking an applicant’s pay history. Similar laws went into effect in San Francisco in July 2018.
As privacy concerns grow and anti-discrimination issues continue to rise, employers and jobseekers are challenged to keep pace with changes in what information is lawful and unlawful to request during the application and screening process.
Currently, employers are permitted to ask applicants in all states for their social security numbers; however, New York, Connecticut, and Massachusetts require employers to put safeguards — like encryption — into place for online applications to protect the privacy of jobseekers.
Employers are encouraged to ask themselves what information is essential to screening and qualifying the best candidates. And jobseekers are challenged to ask themselves how much personal information they are willing to share to get the job. The answers are continually changing.