Hiring Employees?: What NOT to Ask

Hiring employees: what an exciting, but also scary time in an employer’s working life!  But fear not, we’re here to help guide you through some questions that you should NOT ask potential hires.  To help supplement this article, you might want to also take a look at these resources: 7 Steps to Hire an Employee and How to Onboard an Employee: The Checklist of Champions.

As daunting as hiring employees can be, the list of “no no” questions is rather straight-forward (more detail can be found in this article), and are listed below:

  1. “What is your religious affiliation, if any?”
  2. “Are you pregnant?”
  3. “What is your political affiliation, if any?”
  4. “What is your race, color, or ethnicity?”
  5. “How old are you?”
  6. “Are you disabled?”
  7. “Are you married?”
  8. “Do you have children, or plan to?”
  9. “Are you in debt?”
  10. “Do you drink alcohol or smoke?”

And most recently added in due to 2018 legal updates:

11. “What was your previous salary?”

Now, we know what you’re thinking: “Duh, most of those are obviously NOT okay to ask!”  However, always make sure not to ask these questions, nor any derivative of these questions, during the hiring process and even after hiring an employee. Better to be safe than sorry!

In addition to the above list, many state and local governments are implementing, or will soon implement, two more “no no” questions:

  • “Ban the box,” (more on this below) which is a widespread campaign to promote equality among ex-criminals trying to reenter the workforce, by disallowing employers to inquire about criminal history during the hiring process; and
  • Inquiries about salary history have been prohibited, in an effort to promote equal pay between men and woman.

 

What exactly is “Ban the Box”?

The Los Angeles Fair Chance Initiative for Hiring, better known as the “Ban the Box” ordinance, is prohibiting employers (with 10 or more employees) from asking about a prospective employee’s criminal history during the application and/or interview process. “Ban the Box” is taking a cue from cities like San Francisco and New York’s own legislations, but stepping it up a notch: a person’s criminal history can be inquired into only after a conditional offer of employment has been given.

For best practices moving forward, remove any questions regarding criminal history in job applications, postings, and interview questions.  Do make sure to include notices and postings regarding “Ban the Box” legislation.  Make sure to keep a paper trail!  And most importantly, make sure to have all management personnel or anyone in charge of hiring up to speed with these new procedures.

After the inquiry, the offer of employment cannot be rescinded unless an assessment is done that links the applicant’s criminal history with risks inherent to his/her prospective job duties. This written assessment must consider (at a minimum) several factors set forth by the U.S. Equal Employment Opportunity Commission, and any other regulations that may be issued by the designated administrative agency (DAA) responsible for enforcement.

Once the assessment has been completed, written notice of the rescinded offer and a copy of the written assessment must be given to the applicant. However, you must wait five business days before actually filing the employment decision. The applicant is entitled to a “fair chance process” during these five days and can provide any information regarding the accuracy of the criminal history, or any other evidence to show rehabilitation of past crimes. A reassessment must then be written to include all new information provided. If the decision is still made to rescind the offer of employment the applicant must receive a written copy of the decision and the reassessment.

Note: Employers must retain documents related to employment applications, written assessments and reassessments for three years.

Is that it?

Not quite. Not only must the employer eliminate these types of questions from the application process but now they must also provide notice that they will consider for employment qualified applicants with criminal histories “in a manner consistent with the requirements of this [ordinance].” This notice should go in the job posting, and within the physical work site that would be visible to any job applicant.

What happens if I forget to post the notice, or accidentally ask about criminal history?

Since this is new legislature, implemented in January of this year, there is a grace period before penalties kick in. For now, failure to comply with Ban the Box will result in a written warning up until July 1, when the serious penalties start. The first violation will cost you $500, the second $1000, and anything after the third violation will be $2000. A violation of notice and record retention will be $500.

Takeaway

In short, for best practices moving forward remove any questions regarding criminal history in job applications, postings, and interview questions. Do make sure to include notices & posting regarding the Ban the Box legislation. Make sure to write everything down, and keep a paper trail! And most importantly, make sure to have all management personnel or anyone in charge of hiring up to speed with these new procedures.

 

Inquiries about salary history

In an effort to minimize the pay gap between male and female employees, states such as New York and Massachusetts recently enacted state laws that prohibit employers from asking potential hires about their salary history.  “An employer may consider and verify compensation information [only] if the applicant ‘voluntarily and without prompting discloses’ such information.”   More on this can be found via this link.  California’s version of this law is summarized below.

California Assembly Bill (AB) 1676 was signed into law by Governor Brown on September 30, 2016, and this law attempts to minimize the pay gap by restricting employers’ inquiries about salary history.  California Fair Pay Act (CFPA) already prohibits employers from basing salary discrepancies on gender, but AB 1676 takes it a step further by saying that employers can’t use questions about salary history during the hiring process to justify salary discrepancies between men and women upon hiring.  The full text of the law can be found via this link (for those of you who want to nerd out and overachieve by reading it!)   

Moral of the story: don’t ask about salary history, but it is fine if a prospective hire mentions it willingly.  And, of course, do not base salary decisions on volunteered salary history information.

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Revised on: 12/11/17

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