Attracting Talent Without Attracting Litigation

July 16, 2018
Jill Garrison
Timer  Read Time: 4 minutes

This article is a recap of a recent webinar with Bill Robbinson – Shareholder, Corporate & Employment Law – Zimmerman, Kiser & Sutcliffe

The hiring landscape is more complex than ever, with various national, state, and local laws dictating exactly what hiring manager and recruiters can and cannot do during the hiring process.

In our latest webinar, Bill Robbinson, Shareholder at Zimmerman, Kiser, & Sutcliffe joined us to review some of the latest employment law updates.

Ban The Box – ‘Fair Chance Laws’

The ‘Ban The Box’ movement has picked up momentum over the past several months with over 30 states and 150 cities adopting laws requiring public employers to remove the controversial ‘box’ from employment applications. The box in question refers to questioning whether or not an applicant has ever been convicted of a criminal offense. The goal of these initiatives is to provide applicants with a criminal history a fair chance at employment by delaying background checks until later in the hiring process.

Various states and municipalities have adopted these laws, though the guidelines are not consistent. A few variations include:

Employers can only run a background check after an applicant is considered ‘qualified’

Employers can only run a check after an in-person interview

Employers can only check after making a conditional job offer

Each of these stipulations brings different considerations during the hiring and interviewing process. It is important to be very familiar with the ‘ban the box’ regulations in your local area to avoid potential legal issues.

Furthermore, most states require an ‘individualized assessment’ that follows the EEOC guidelines for a criminal history review. First, the employer must review the nature and gravity of the offense. Then, the employer must review the time that has elapsed since the offense occurred and any time that has been served. Finally, the employer must review the nature of the position and whether or not the offense is a concern for the job.

Examples of individualized assessment:

Violent offenses and positions where employees are alone with customers or other employees?

Driving while impaired / under the influence and positions involving the operation of a vehicle?

Theft, embezzlement or offenses involving dishonesty and finance or bookkeeping positions?

Deferred prosecution for disorderly conduct during college and an account manager position 15 years later?

Other Hiring Traps – ‘Adverse Impact’

Another hot-button item to keep on your radar are laws relating to ‘adverse impact’, which refers to questions that seem ‘facially neutral’ but may actually be discriminatory when used to screen out candidates disproportionately in a protected class.

Any application question or pre-employment inquiry can have an adverse impact on a protected class, even if it appears to be neutral. Questions about marital status, military discharge, political beliefs, etc. are not allowed during the hiring process.

Hiring managers must make sure that all questions/inquiries on applications or during interviews are both job-related and have been examined for adverse impact. Ask yourself, is there another way to gather the info or ask the question? Be sure to check EEOC guidelines or to ask your attorney if you have any questions about the potential impact of your hiring questions.

An example of this is asking whether or not an applicant owns a car. The EEOC considers this question to be related to financial circumstances, which is allowed as long as the employer does not use that information to discriminate against minority groups, though this can be a slippery slope. A better way to approach the situation would be to ask if the employee has a consistent and reliable means of transportation to work instead.

Prior Salary Ban

The latest interview question to come under scrutiny is any inquiry related to prior salary. Multiple states and cities have already passed laws banning any question that references an applicant’s prior pay, and more states are slated to follow.

The purpose of this movement is to help women and members of minority groups who have been paid less to perform the same job get hired at salaries or wage rates equal to those of white men.

The tricky part? Like most new laws, the guidelines are inconsistent or unclear from one region to another. For example, at least one court has ruled that employers can ask about prior pay history but cannot use this information to rely on setting the new applicant’s salary. This is another slippery slope that could result in litigation if the employee were to find out they were being paid less than a white/male counterpart.

The rollout of these laws is very new and will be clarified in the coming months as regulations are added and court decisions provide clarity – keep the salary ban on your radar and stay tuned for more details about the law in your local area.


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