Two topics which have dominated many recruitment and background screening conversations in 2017 have been in regards to salary history and Ban the Box regulations. Employers throughout the country have made significant changes to their recruitment processes to stay complaint with jurisdictions that have passed laws prohibiting employers from inquiring about, or relying upon, a job applicant’s salary history and/or criminal history.
As the new year approaches, getting ahead of upcoming compliance regulations will help prepare you for a smooth 2018. In addition to our previous overview of updated salary history restrictions for New York City, Massachusetts and Philadelphia, we have reviewed additional legislation below that will impact you as you move into the new year.
California’s Salary History Regulations
Effective January 1, 2018, employers may not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
Which employers are affected?
Salary history restrictions apply to all employers in the state of California.
Are there exceptions?
- If an applicant voluntarily, and without prompting, discloses salary history information to a prospective employer, the employer is not prohibited from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant; and
- This does not apply to salary history information disclosable to the public in accordance with federal or state law. Please review and discuss with your legal counsel to determine if you meet one of the exceptions provided.
California’s Ban the Box Regulations
Effective January 1, 2018, employers in the state of California may not ask about criminal history prior to a conditional offer.
Which employers are affected?
This legislation impacts employers with five or more workers.
Are there exceptions?
- Yes, please review and discuss with your legal counsel to determine if you meet one of the exceptions provided. The law also notes that these remedies shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.
San Francisco’s Salary History Regulations
Effective July 1, 2018, employers in San Francisco, CA may not inquire about applicant’s salary history, or consider or rely on salary history to determine an offer of employment or salary.
Which employers are affected?
Salary history restrictions in San Francisco apply to applicants applying for employment to be performed in the geographic boundaries of the City and whose application, in whole or part, will be solicited, received, processed or considered in the City.
Are there exceptions?
- Employers may, without inquiring about salary history, engage in discussion with the applicants about the applicant’s expectations with respect to salary, including but not limited to unvested equity or deferred compensation or bonus that an applicant would forfeit or have canceled by virtue of the applicant’s resignation from their current employer.
- If a verification of non-salary related information disclosed by the applicant, or background check, discloses the applicant’s salary history, the disclosed history shall not be considered for purposes of determining the salary offered or whether to offer employment.
- If an applicant voluntarily and without prompting discloses salary history, or provides written authorization, employers may consider that voluntarily disclosed history in determining or verifying salary. Salary history by itself shall not justify paying any employee of a different sex, race or ethnicity less for substantially similar work under similar working conditions.
Oregon’s Salary History Regulations
Employers are unable to inquire about salary history in the state of Oregon effective October 6, 2017.
Which employers are affected?
The law applies to employers with 1 or more employees who render personal services wholly or partly in Oregon and are paid at a fixed rate.
Are there exceptions?
- An employer may pay employees for work of comparable character at different compensation levels if all of the difference in compensation levels is based on a bona fide factor that is related to the position in question and is based on a seniority system; a merit system; a system that measures earnings by quantity or quality of production, including piece-rate work; workplace locations; travel, if travel is necessary and regular for the employee; education; training; experience; or any combination of the factors described above, if the combination of factors accounts for the entire compensation differential.
Delaware’s Salary History Regulations
Employers are unable to inquire about salary history in the state of Delaware as of December 14, 2017.
Which employers are affected?
The law affects all employers and their agents.
Are there exceptions?
- An Employer or employer’s agent may seek the applicant’s compensation history after an offer of employment with terms of compensation has been extended to the applicant and accepted, for the sole purpose of confirming the applicant’s compensation history.
- The law does not prohibit an employer or employer’s agent from discussing and negotiating compensation expectations provided that the employer or employer’s agent does not request or require the applicant’s compensation history.
- If an employer can demonstrate that their agent, who is not an employee, was informed of the requirements of the law and instructed to comply by the employer, then the employer is not liable for actions taken by the agent in violation of this section (for example, a staffing agency or recruiting company).
Recommendations
As an employer, you may have obligations under these laws that may impact your organization and your current processes. We always recommend you discuss changing legislation with your legal counsel to ensure you understand your responsibilities and what processes you may need to modify.
Additional Resources
For more information regarding recent salary history initiatives in other states and jurisdictions, visit our Legislative Updates page.
*The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.
