The Job Application Has Changed

As long as we have politicians and lawyers the job application will continue to morph. As a HR professional and/or a business person, it is to your extreme advantage to become aware of recent and future changes. Litigation is very expensive.

BAN THE BOX

What is “ban-the-box?

The "box" refers to the question on job applications that asks applicants whether or not they have ever been convicted of a crime. Ban-the-box laws require employers to remove this question—as well as any other queries about criminal history—from job applications. Ban the box laws seek to prevent employment discrimination against individuals with criminal records. The idea is that an employer gets a chance to form an initial impression of each applicant’s current character before the employer reacts to the fact that the applicant has a criminal history. With no questions about criminal history on the job application, and with background checks delayed until late in the hiring process, an ex-offender will theoretically have a better chance of being viewed as "the best person for the job.

30 states and over 150 cities and counties have “Ban the Box” laws or pending legislation to approve “ban the Box”. Ten states, the District of Columbia, and fifteen cities and counties extend “Ban the Box” policies to private employers.

Here is the problem. Even though you must remove the question you can still do a criminal background check. Why? Because you the employer are still responsible for doing due diligence of a background screen and assuring your employees are safe. Willingly hiring someone with a violent past and that individual hurts and or kills another employee, then you the employer are culpabilis or culpable in that injury /death and will be sued. Also, Department of Transportation, Union rules and other agencies often offer up conflicting requirements requiring or mandating felons cannot be hired.

Let me say this , I worked with LEO Liberated Ex Offenders and other great groups dedicated to getting felons back into the workforce and ending the cycle of them returning to crime because they cannot get employed. Until the laws holding employers responsible for the actions of a known felon in the workforce than ban the box is just smoke with no substance.

Regardless, make sure your applications are up to date in the state you are hiring. My advice. Just remove it all together. You are doing the background check anyway so why tempt fate. 

SALARY HISTORY

Add salary history to the growing list of inquires off limits to those who interview and evaluate prospective job candidates. Several cities and states have passed legislation that, broadly, prohibits a prospective employer in the private sector from asking questions about an applicant’s compensation history. A law recently passed and becoming effective on Oct. 31, 2017, New York City joins Philadelphia, Massachusetts, Delaware, Oregon, and Puerto Rico as the newest member of this club. Similar legislation has been proposed in several jurisdictions, including California, New Jersey and Washington State as well, while New York State, Pittsburgh and New Orleans have enacted laws or issued executive orders prohibiting such inquiries in the public sector.

Employers in most industries are inclined to inquire about a candidate’s salary history. Job applications often seek such information; recruiters typically solicit facts about compensation during their intake with job seekers; and questions about prior pay are inevitably addressed during an applicant’s initial interview or as the hiring process progresses. Employers like having this information because it can inform decision-making, possibly allowing them to avoid candidates who are too “expensive.” It also assists in the development of compensation packages.

Laws passed in these various jurisdictions all seem to share a common goal of eradicating pay disparity between the sexes, they are each unique in their own ways. Some use broad language, while others are more narrowly drafted. And some include specific exemptions or safe harbors, where others are silent as to any permissible use of salary history during the hiring process.

I honestly am puzzled by this rash of new laws.

Social Security Number

Although asking applicants for their Social Security numbers is not unlawful, requesting this information from applicants is not recommended due to identity theft and privacy concerns. Employers do not need this information until it is time to run a background check or complete a W-4; therefore, including it on an application carries unnecessary risk. In addition, some states require security measures to be in place if applications asking for Social Security numbers are transmitted electronically or mailed without being in a sealed envelope. Honestly, you don’t need it unless hiring the employee. Don’t be lazy just get the SS number on the new hire paperwork or background check.

Never and I mean never, take that number and do a “pre-background screen” without the candidates express written authorization. It is unethical and illegal.

The other issue is if you are hacked then you are required to notify each and every candidate in your database that their personal info has been abducted under your care. Ask Target how fun that is to deal with.

CREDIT CHECKS

The upswing in laws limiting the use of credit checks for employment purposes may be attributable to studies suggesting that credit history is often irrelevant to job performance and employment decisions based on credit history may have a discriminatory effect on certain protected groups

The EEOC and the Federal Trade Commission have published joint guidance documents, outlining rights and requirements under the Fair Credit Reporting Act. However, credit checks are “not really regulated by federal law unless there’s discrimination,”

Over a dozen states have passed laws limiting employers’ ability to use credit checks. A handful of other states allow for credit checks generally, but impose certain requirements on employers that utilize them. States such as Illinois and Colorado prohibit employers from conducting credit checks, subject to a few exceptions. States such as New Hampshire and Massachusetts, allow employers to conduct credit checks on employees and prospective employees, but require employers to make certain disclosures to those for whom the checks are being conducted and limit the information that can be included in credit reports. 

Typically, jurisdictions that restrict employers’ use of credit checks do so on the basis of the occupation in question. Laws in Illinois, Connecticut, Colorado and Vermont have “very broad exceptions for financial institutions. New York City administrative code, on the other hand, only allows credit checks on individuals that hold certain positions within financial institutions, where credit checks are required by law or by industry rules and regulations

In certain states, the permissibility of a credit check depends on where a position falls within the hierarchy of an organization. California prohibits the use of credit checks in making employment decisions subject to a handful of exceptions, one exception being whether a position is managerial. Connecticut employers can’t use credit information subject to certain exceptions, including managerial positions that involve “setting the direction or control of employers' business, divisions, units or agencies.

I predict running credit checks will be illegal by 2025.

DATE OF GRADUATION

Employers cannot ask age unless it is under 18 or over 21 for serving alcohol. To get around that, a slick trick to age discrimination is to ask when the person graduated High School or College. Most people graduate at 17 or 18 from High School and College from age 21 to 23. You just do the math. There is absolutely no reason whatsoever that you critically need someone’s graduation date and GPA for that matter. Really you want to know I had a 4.0 in high school twenty years ago? Sell crazy someplace else.

Funny story. I had a couple thousand kids in my high school class and I graduated number 35. My friend Jasper also in HR had 15 kids in high school graduating class. He graduated number 10. We both had a headhunter call. The headhunter asked us both “What was your GPA and rank in class”. For fun I knew the guy that owned the search firm and we called him. He was said “ My recruiter was all pumped that Jasper had a 4.0 GPA and graduated tenth in his class”. We said maybe he should have asked the size of the class. Jasper went to a small Catholic school with 15 kids and I graduated with around 3,000 also with a 4.0. “Oh. That does make a difference doesn’t it” the owner said with a laugh.

2018 and 2019 will see new legislation that will ban this form of age discrimination.