One big issue in hiring practices right now is exactly how much information an employer is legally permitted to request from a prospective employee, as a skilled employment discrimination lawyer can explain. As is the case with California, restricting this information can be based on the idea that the less information employers can have, the more employment opportunities people will have. In particular, this information includes things like criminal conviction histories and prior salaries.
In effect, by mandating that employers cannot ask about convictions, it makes it easier for those with convictions to not be disadvantaged solely for that reason when applying for jobs. Similarly, prior salaries can function as a proxy for gender or sex, such that when women are asked for prior salary information, this can lead to decreased salary offerings if hired. Ultimately, this is designed to protect potential employees from being disadvantaged in some way due to these forms of information about them, to decrease disparities in opportunities and increase inclusion across different groups.
First, more than 70 million Americans have a criminal record and this has huge implications when they go to apply for a job. “Ban the box” is a phrase that has recently grown in popularity; it is the idea that an applicant should not – at least at the beginning of the application screening process – have to say they have a conviction. Previously, once the applicant is deemed to be qualified, then the employer can look into those convictions, but only at that point, which meant that the employee had a chance for the employer to get to know them more before making a blanket decision just based on their prior conviction.
After a set of earlier legislative actions, in late 2017, California passed another bill that restricted what employers can ask regarding convictions, which now mandates that the employer cannot look at their convictions until after a conditional job offer. This makes it easier on employees who have convictions to get further in the hiring process while making it harder on employers who want such information.
Second, similar to convictions, employers in California – under a law passed in 2017 – now must refrain from asking an applicant for information on salary history, as it pertains to hiring that person or deciding what salary to offer. This law is designed to address the wage gap between men and women, as women make 80.5 cents on the dollar that men make.
Altogether, these trends show that California – along with other states – are reducing the information employers can ask for up front, and thereby giving applicants and potential employees – especially disadvantaged applicants – some assistance when it comes to legal protections during the hiring process. Employers and employees should both look out for hiring practices that violate these recent changes.
