More and more states and cities are enacting laws that remove criminal history questions from job applications. The federal Fair Chance Act prohibits an executive agency from “requesting an applicant for federal employment to disclose criminal history record information before a conditional offer of employment is made to the applicant.” Similar laws, often referred to as “ban-the-box” laws are being adopted by a number of cities and states.
Ban-the-box typically means employers must delay inquiries about an applicant’s criminal history until later in the hiring process. Depending on the law, this can mean waiting until after the first interview or a conditional job offer. However, employers are still entitled to do background checks before actually hiring someone. Understanding what employers can do to prescreen potential employees while still staying within the law takes a thorough understanding of the local and state laws around hiring.
Employers must also be concerned with the guidance issued by the equal Employment Opportunity Commission (EEOC) in 2012 on the proper use of criminal records. In addition, the federal Fair Credit Reporting Act (FCRA) is also critical to understanding how to obtain and use criminal records.
Some cities and states are also barring prospective employers from asking about a candidate’s salary history. While the purpose of this restriction is to level the playing field so that prospective employees get a fair shake no matter what their gender or ethnicity as far as salary parity, it can make headaches for HR when trying to determine what to offer for salary.
Recently, the Ninth U.S. Circuit ruled on a case brought by a female employee who found out that a recently hired male employee was starting at a higher salary for the same job she was doing. She discovered the male employee was making a higher because his pay rate was based on salary history. The Ninth Circuit ruled that prior salary, alone or in combination with other factors, could not justify a wage differential because to hold otherwise would be contrary to the federal Equal Pay Act. The court noted that the factors employers could consider are limited to legitimate, job-related factors such as a prospective employee's experience, educational background, ability, or prior job performance.
In addition, employers with multiple sites in different cities and states covered by laws that ban the box and prohibit salary history inquiries need to ensure they are compliant with applicable state and local laws.
Don’t take a chance on whether your organization’s pre-employment screening practices could subject you to legal liability and costly penalties. Join us on April 4 for the latest information on the policy-based and procedural safeguards you should have in place so your pre-employment hiring practices don’t result in disparate impact or discrimination claims because of how you approach issues like an applicant’s criminal history, salary history, or other related issues.
You’ll learn how to:
- Comply with the latest updates to ban-the-box laws, salary inquiry restrictions, and other laws that affect background checks of prospective hires
- Evaluate when to ask questions related to criminal convictions—and when to hold back
- Identify how FCRA and EEOC rules may apply to your employee background checks
- Apply best practices for reviewing job advertisements, employment applications and other related forms
- Handle tricky questions around salary, and learn the related laws depending on your location
- Ensure compliance when your company operates across multiple states or cities, which may have varying requirements concerning ban-the-box and salary history inquiries
- Determine if you should explain a decision not to hire someone because of a criminal record
- Calculate how many years back you can go when doing background checks
- Establish background check policies that link the decision-making to job descriptions
- Avoid “red flag” issues that could result in disparate treatment and disparate impact, such as age-related questions or personal data
- Address gaps in employment history, which can be seen as discriminatory in certain cases
- Recognize the importance of individualized assessments to avoid discrimination claims
- And much more!
YOUR EXPERT INSTRUCTORS
Lester S. Rosen, Esq.
Attorney Lester S. Rosen is founder & CEO of Employment Screening Resources® (ESR), a global background check firm located in the San Francisco, California-area that is accredited by the National Association of Professional Background Screeners (NAPBS). He is a nationally recognized background check expert and the author of The Safe Hiring Manual, the first comprehensive guide to employment screening. He is a frequent presenter on safe hiring issues, and his speaking appearances for "ESR Speaks" include numerous state and national conferences.
Dawn Standerwick, the Vice President of Strategic Growth for Employment Screening Resources, is a seasoned industry professional with over 27 years of experience in all facets of workforce screening. She has extensive knowledge in background screening, substance abuse testing, occupational health screening and related HR technologies. She is a longtime member of the Board of Directors for the National Association of Professional Background Screeners (NAPBS) and was elected Chair of the NAPBS for the 2016-17 term. In 2018, the NAPBS recognized her as the longest serving board member in its history with 9 years of service. She previously served on the Board of Directors for HR Tampa, Florida’s largest Society for Human Resource Management (SHRM) Chapter. She has been quoted in publications such as USA Today and SHRM HR Magazine.
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