You Asked What???? New Laws Increasingly Regulate Pre-Employment Inquiries

April 19, 2017 Andrea R. Bernstein

While companies have an interest in learning as much as possible about potential employees before making an employment offer, questions on written applications and in interviews during the pre-employment process should be limited to those essential for determining if a person is qualified for the job.  While most companies know that certain questions are ill-advised and just should not be asked – for example, questions about an employee’s age, religion, national origin, etc. – companies may not be aware of the growing trend of states and local governments to outlaw other types of inquiries.

Inquiries Regarding Prior Compensation.  In a new trend prompted by a belief that an applicant’s disclosure of his or her prior compensation perpetuates existing pay discrepancies based on gender and ethnicity, some U.S. states and cities have recently passed laws prohibiting inquiries into a prospective employee’s compensation history.

If a prospective employee has voluntarily disclosed wage history information, the company may confirm the information.  Further, a company may seek or confirm a prospective employee’s wage history after an offer of employment with compensation has been negotiated and made to the prospective employee.

  • Effective May 23, 2017, Philadelphia law will make it unlawful for a company to:
    • inquire about, require disclosure of, or condition employment or consideration of employment on the disclosure of a prospective employee’s wage history,
    • retaliate against a prospective employee for failing to comply with a company’s questions about the prospective employee’s wage history, or
    • rely on information regarding the wage history of a prospective employee for purposes of determining the prospective employee’s compensation, unless the prospective employee knowingly and willingly disclosed his or her wage history.
  • Effective July 1, 2018, Massachusetts law similarly will make it unlawful for a company to:
    • seek the wage history of a prospective employee from the prospective employee or from a current or former employer, or
    • require a prospective employee’s prior wage history to meet certain criteria.
  • On April 5, 2017, the New York City Council passed new legislation restricting inquiries into an applicant’s wage history.  Once the law is signed by the mayor and thus final, SWA will provide further information regarding the law’s provisions.

It is noteworthy that other states, including New Jersey and Texas, have also introduced legislation limiting pre-employment wage history inquiries.

As the exact scope and definition of certain terms vary from jurisdiction to jurisdiction, companies should consult with legal counsel as to the exact limitations of the laws applicable to particular jurisdictions.

Inquiries Regarding Criminal Convictions. More than 150 United States jurisdictions (including states, counties and cities) have passed laws that prohibit or substantially limit a company’s use during the hiring process of information regarding an employment applicant’s criminal convictions.  These “ban the box” laws (named for the box on an application that an applicant would be required to check to affirmatively acknowledge a criminal conviction), vary from locality to locality as to:

  • what may be asked regarding criminal convictions,
  • when such inquiries maybe made,
  • under what circumstances such information may be used in making employment decisions, and
  • what procedures must be followed to make an employment decision based on such information.

Some of the jurisdictions that have already passed “ban the box” laws include the cities of Los Angeles, San Francisco, New York, Philadelphia, and Seattle, as well as the states of Illinois, Massachusetts and New Jersey.

Additional restrictions on pre-employment inquiries vary from state to state.

Andrea Bernstein is a member of the labor and employment practice at SWA and represents U.S. companies with respect to all facets of U.S. employment law. Andrea has significant experience litigating employment cases on behalf of employers, with emphasis on litigation of restrictive covenants, wage and hour matters, and discrimination, harassment, and retaliation claims. She also has broad experience in counseling HR personnel and in-house counsel on legal compliance and risk avoidance issues in the employment law context.

Andrea can be reached at 646 328 0775 or abernstein@swalegal.com

This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Andrea R. Bernstein. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.