A new year means new legislation is going into effect. New hiring laws, particularly related to discrimination, salary and expungements, begin in 2020. Human resource professionals and recruiters will need to review current policies and systems in order to maintain compliance with these changes.
Salary History
Salary history bans prohibit employers from inquiring about an applicant’s prior salary. This is different than asking the applicant what their expected salary is for the available position. The main purpose of salary history bans, according to the National Partnership of Women and Families, is to dissuade companies from wage discrimination and providing a level wage playing field for women and minorities.
New Jersey
Effective: 1/1/2020
New law prohibits employers from inquiring about an applicant’s prior compensation benefits, including salary, wages, and commissions. If an applicant’s salary history is disclosed to the employer during a background check, they aren’t allowed to use that information in making their compensation and hiring decisions. Further, employers cannot retaliate or refuse to hire someone because they didn’t disclose their salary history.
Exceptions:
- The applicant voluntarily supplies their salary history information to the employer
- Current and former employees
- Written confirmation once a job offer with compensation has been given
New York
Effective 1/6/2020
New law prohibits employers from asking about previous salary, with the exception of freelance or contract workers unless they’re hired through an employment agency. Unlike the New Jersey law, current and former employees are included in the salary history ban. New York employers must also refrain from retaliation or refusal to hire based on an applicant’s nondisclosure of salary history.
Exception:
- If the applicant voluntarily provides their salary history to the employer.
Cincinnati, Ohio
Effective: 3/12/2020
Companies with 15 or more employees are prohibited from asking an applicant about their salary history. Employers may not refuse to hire or retaliate against an applicant who doesn’t disclose their prior salary. They must refrain from using any salary history information that may be included in a background check report.
Exceptions:
- Current employees for transfer and promotional consideration
- Bargaining agreements
- If the applicant voluntarily provides their salary history to the employer
Toledo, Ohio
Effective: 7/4/2020
The salary history ban in Toledo is practically the same as the Cincinnati ban. It applies to companies with 15 or more employees. Employers may not retaliate against an applicant for not providing their salary history and they may not use salary information obtained from a background check report.
Exceptions:
- Former employees, within 5 years.
- Current employees
- If the applicant voluntarily provides salary history
Expungements
In some states those convicted of crimes may request to have their records expunged. Expungements remove the record of criminal activity in the eyes of the law. It’s usually reserved for minor crimes and misdemeanors in which the criminal has served their sentence or were eventually not convicted of the crime but still had an arrest on their record.
Delaware
Effective 12/28/2019
A prior expungement law in Delaware only applied to adults with an arrest record that didn’t lead to a conviction, or after a pardon was granted for some misdemeanors. The new law allows adults to petition for some violations and misdemeanors if they have no prior or subsequent convictions. It also applies to those who were arrested but weren’t found guilty. The law also expands to allow the expungement of felonies in some cases, however serious offenses don’t qualify without a pardon.
Illinois
Effective 1/1/2020
As part of the new Cannabis Regulation and Tax Act, people with convictions of possession up to 30 grams will automatically receive clemency. People convicted of larger amounts, up to 500 grams can petition to have the charge lifted. If an arrest was related to a violent crime or selling to a minor, then they’re not eligible for expungement.
Hiring Discrimination
Many companies are already making moves to limit or stop many types of discrimination through training and inclusive hiring policies. States and city level jurisdictions are offering more legal protections for classes who are often discriminated against.
Illinois
Effective: 1/1/2020
The new law in Illinois redefines “arrest record” to include an arrest not leading to a conviction, a juvenile record, and criminal history information that has been ordered expunged, sealed, or impounded.
It also clarifies that it’s a civil rights violation to use an arrest record as a basis for refusal to hire, promote, or renew employment. This doesn’t mean employers in Illinois can no longer request background checks. Employers do have a right to request or utilize sealed felony conviction information if federal law regulations require criminal background checks. Employers may also obtain and use information indicating a person engaged in the crime for which they were arrested.
Grand Rapids, Michigan
Effective: 12/1/2019
Employers in Grand Rapids can no longer consider arrests that didn’t result in a conviction as basis for refusing to hire. They can, however, consider a criminal conviction on a case-by-case basis. To do this, the employer must consider the nature of the crime, the age of the individual at the time, repeat offenses, good employment history, rehabilitation efforts, and if the crime poses a risk to the health, safety, or welfare of employees or company property. Employers cannot ban all persons with a criminal record from gaining employment.
This new ordinance also adds more categories to the list of protected classes. Gender expression, genotype, familial status, and medical condition are all now considered protected classes in Grand Rapids. Included in this portion of the ordinance is a non-retaliation clause prohibiting persons or companies to retaliate against protected classes who file complaints of violations.
Waterloo, Iowa
Effective: 7/1/2020
The new ban-the-box ordinance in Waterloo affects private employers with 15 or more employees. It prohibits employers from inquiring about an applicant’s criminal record until a conditional offer of employment has been provided. The one exception is if the applicant discloses their criminal history voluntarily. As with most ban-the-box ordinances, there are stipulations that allow employers to refuse hire after the conditional offer has been made. An employer may rescind if there is risk of harm to employees or the company, the employer must comply to federal or state mandates, the nature of the criminal activity has a direct correlation to the job, or if the position requires work with children or vulnerable adults and the crime pertains to those two classes.
It is the employers responsibility to update policies and remain in compliance with all changing laws. All HR and hiring staff should be notified and undergo retraining for any new policy changes made due to these new laws. Employers should review current applications to maintain compliance with discrimination laws, and hiring policies should be reworded to reflect compliance to laws pertaining to background checks, discrimination, and salary history.
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Critical Research is committed to educating our clients and readers about the importance of pre-employment background screening, drug screening, and post-hire compliance. We believe in transparent communication and helping each client achieve their hiring goals. We’re here to help get your applicants from interview to orientation. For more information about salary history, hiring discrimination, and criminal record compliance, please contact us.