Washington State and the City of Spokane have joined a growing number of jurisdictions that have passed so‐called "ban‐the‐box" laws. Both laws limit when employers can inquire into and consider the criminal history of a job applicant and will go into effect in June 2018.

Washington State Bans the Box

The Basics

• Location: Washington State
• Legislation: HB1298
• Type: Ban the Box
• Effective: June 6th, 2018

Key Takeaways

• May not exclude people with criminal records in advertisements.
• Prohibits inquiries into an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified (as defined).
• Penalties may be enforced up to $1,000 per violation.

Who does this effect?

The law applies to employers including public agencies, private individuals, businesses and corporations, contractors, training and apprenticeship programs, and temporary staffing, job placement, referral, and employment agencies.

What is prohibited in the law?

Employers may not:

• Advertise employment openings in a way that excludes people with criminal records from applying;
• Obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position, meaning the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record; or
• Implement any policy or practice that excludes individuals with a criminal record, including failure to disclose such record, from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

Are there any exceptions?

The law does not apply to:

• Employers hiring a person who will or may have unsupervised access to children, or a vulnerable adult or person (as defined);
• Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant's or employee's criminal record for employment purposes;
• Employment by a general or limited authority Washington law enforcement agency, or a criminal justice agency (as defined); ü An employer seeking a nonemployee volunteer; or
• Any entity required to comply with the rules or regulations of a self‐regulatory organization (as defined).

What are the repercussions for a violation of the law?

The Washington Attorney General’s office will utilize a stepped enforcement approach using education, warnings, and legal, including administrative, action. Penalties may be enforced up to $1,000 per violation.

How does the state law interact with local government laws?

The state law does not interfere with local government laws that provide additional protections for such applicants or employees in the future. Local government laws that provide lesser protections to job applicants with criminal records than the state law conflict and may not be enforced. The state law also does not discourage or prohibit employers from adopting employment policies that are more protective of employees and job applicants than the state's requirements.

The City of Spokane, WA Bans the Box

The Basics

• Location: Spokane, WA
• Legislation: Ordinance No. C35564
• Type: Ban the Box
• Effective: June 14th, 2018

Key Takeaways

• • Cannot advertise job openings in a way that excludes people with arrest or conviction records.
  • Prohibits any inquiries about an applicant’s arrest or conviction until after an interview or conditional offer of employment has been made.
  • Cannot disqualify an applicant solely because of a prior arrest/conviction record or for failure to disclose a criminal record prior to determining the applicant is qualified for the position.

Who does this effect?

The law applies to all private employers within the Spokane city limits. Separate requirements are also outlined under the law which apply only to the City of Spokane.

What is prohibited in the law?

Employers may not:

• • • Advertise job openings in a way that excludes people with arrest or conviction records from applying; however, employers may advertise the requirement for a criminal history inquiry and/or background check during or after the interview process as long as it does not state that an arrest or conviction record will automatically preclude the applicant from consideration for employment;
    • Obtain information about an applicant's arrest or conviction record until after the applicant has participated in an interview or received a conditional offer of employment;
    • Use, distribute, or disseminate an individual’s arrest or conviction record except as required by law;
    • Disqualify an individual solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job or disqualification is otherwise allowed by this law; or
    • Reject or disqualify an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position, meaning the applicant meets certain criteria for the position as set out in the job advertisement or description without considering the existence or absence of a conviction or arrest record.

Are there any exceptions?

The ordinance does not apply to:

• • • Any employer hiring an employee who will have unsupervised access to children under the age of eighteen, a vulnerable adult, or a vulnerable person (as defined under state law);
    • Employers that are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant’s arrest or conviction record for employment purposes;
    • Any General Authority Washington law enforcement agency (as defined under state law); or
    • Employers conducting criminal background checks that are specifically permitted or required under state or federal law.

What does this mean for an employer?

• • • The ordinance is not intended to prohibit an employer from inquiring into or obtaining information about an applicant’s criminal conviction or arrest record or background, and from considering the information regarding such information, after the conclusion of a job interview, or after a conditional offer of employment has been made, and from using such information in any pre‐hire decision.
    • Nothing in the ordinance prohibits an employer from declining to hire an applicant with a criminal record or from terminating the employment of an employee with a criminal record.

What are the repercussions for a violation of the law?

A violation of the ordinance is a class 1 civil infraction. Any subsequent violation advances the infraction by one class and may increase the fines. Citations or fines for violations of the ordinance will not be imposed until after January 1, 2019.

Recommendations

recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.  Seyfarth Shaw has also provided overviews you may read for Washington State.

Contact Accurate Background

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page. Please note:  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.

Maine Employers Can No Longer Refuse to Employ Individuals Who Test Positive for Marijuana

The Basics

• Location: Maine
• Legislation: Marijuana Legalization Act
• Type: Drug Testing
• Effective: February 1, 2018 (for sections noted below)

Key Takeaways

• Employers are prohibited from refusing to employ or otherwise penalizing a person for legal consumption of marijuana outside of the employer’s property.
• Employers must have a drug testing policy approved by the Bureau of Labor Standards, unless the exception for federally mandated employers applies.

Maine became one of eight states that have legalized marijuana for recreational use in 2016, however, they continue to work on the language and requirements that will permit the cultivation and sale of marijuana and marijuana products. Nevertheless, this did not stop a number of provisions of the Act from going into effect on February 1, 2018. Previously, Maine prohibited employers from penalizing medical marijuana users solely on their status as medical marijuana cardholders. The new recreational marijuana law seems to be following this anti‐discrimination trend by prohibiting employers from penalizing employees and prospective employees for marijuana use outside of the workplace.

What is prohibited in the law?

Under Section 2454(3) of the Maine Revised Statutes employers may not refuse to employ or otherwise penalize a person 21 year of age or older solely for that person's consuming marijuana outside of the employer's property. If an employer has, or determines to proceed with, a drug testing program, they must have a drug testing policy approved by the Maine Department of Labor’s Bureau of Labor Standards.

How does this affect employers trying to promote a drug‐free workplace through their employment drug testing policies?

Under Section 2454(2) of the Maine Revised Statutes, employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. Nor does it affect the ability of an employer to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. Employers may need to review drug‐free workplace policies to ensure they align with the law.

Are there any exceptions?

According to guidance from the Maine Department of Labor, unless “an employer has any employees who are subject to a federally mandated drug‐and‐alcohol testing program working in Maine” they must have an approved drug testing policy. Federally mandated employers may expand the federal testing pool to cover all employees. These exceptions are echoed in Maine’s Medical Marijuana Act and the Department of Transportation (DOT) has also emphasized that state initiatives will have no bearing on the DOT regulated drug testing program. The DOT has taken the position that the use of medical or recreational marijuana is “unacceptable for any safety‐sensitive employee” subject to DOT drug testing.

Recommendations

We recommend you review the Act and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations. Seyfarth Shaw has also provided an overview you may read here.

Contact Accurate Background

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page. Please note:  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.

Kansas City, MO Expands Ban the Box Law to Private Employers

The Basics

• Location:  Kansas City, MO
• Legislation: Ordinance No. 180034
• Type: Ban the Box
• Effective: June 9th, 2018

Key Takeaways

• Bans the box for employers with six or more employees.
• Employers are prohibited from making inquiries into an applicant’s criminal history until after determining the applicant is qualified and has been interviewed for the position.
• Employer may not base an employment decision on an applicant’s criminal history unless the employer can demonstrate they met the requirements as provided in the Ordinance. 

The Kansas City Council recently approved Ordinance No. 180034, amending Chapter 38 of the City’s Code of Ordinances and expanding their ban the box law to private employers. The revised law will take effect June 9, 2018.

Who does this effect?

The law applies to all employers who employ six or more employees within the city limits.

What is prohibited in the law?

Employers may not:

• Base a hiring or promotional decision on an applicant’s criminal history or sentencing, unless the employer can demonstrate that the employment‐related decision was based on all information available including consideration of the frequency, recentness and severity of a criminal record and that it was reasonably related to the duties and responsibilities of the position;
• Inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position and the applicant has been interviewed for the position. Such inquiry may be made of all applicants who are within the final selection pool of candidates from which a job will be filled.

Are there exceptions?

The ordinance does not apply to positions where employers are required to exclude applicants with certain criminal convictions from employment due to local, state or federal law or regulation.

Recommendations

We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.  Seyfarth Shaw has also provided an overview you may read here.

Contact Accurate Background

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.   Please note:  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.

2017 Compliance Recap

We have compiled a list of important legislation that took place in 2017 for your review. You can see a list of these legislation and additional details regarding these changes here.

The List of Jurisdictions Passing Pay Equity Laws Continues to Grow

Oregon, Delaware, and San Francisco have passed laws restricting the use of salary history in employment screening and decisions. These laws add to the list of jurisdictions who have passed similar legislation to restrict the use of salary history and promote pay equity.

Oregon

The Basics

• Location: Oregon
• Legislation: House Bill 2005
• Type: Salary History
• Effective: October 6th, 2017

Key Takeaways

• Applies to employers with 1 or more employees in Oregon.
• May not screen job applicants or determine compensation based on current or past compensation, or seek an applicant or employee’s salary history.
• Compensation differentials must be based on a bona fide factor (listed below).
• Employers must post a notice of the requirements where employees work. The Bureau of Labor and Industries will provide a template.

When does this go into effect?

The salary history restrictions went into effect October 6, 2017, however, most provisions of the Act become effective January 1, 2019.   These provisions include, but are not limited to, prohibiting employers from discriminating against employees based on a protected class and posting requirements. Beginning January 1, 2024, employees will have the right of private action against potential employers who have violated the salary history act.

Who does this effect?

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.  There are additional qualifications when services are rendered only partly within Oregon.

What is prohibited in the law?

Employers or prospective employers may not seek salary history from an applicant or employee, or their current or former employer.  This is not intended to prevent an employer from requesting written authorization from a prospective employee to confirm prior compensation after the employer makes an offer of employment to them that includes an amount of compensation.  It is also an unlawful employment practice for employers to:

• • • In any manner discriminate between employees on the basis of a protected class in the payment of wages or other compensation for work of comparable character (meaning substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or title).
    • Pay wages or other compensation to any employee at a rate greater than the employer pays employees of a protected class for work of comparable character.
    • Screen job applicants based on current or past compensation.
    • Determine compensation for a position based on current or past compensation of a prospective employee. This does not prevent consideration of compensation of a current employee during a transfer, move or hire to a new position with the same employer.

Are there any exceptions?

Yes, 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.

What other requirements impact employers?

Employers must post a notice of the requirements in every establishment where employees work. The Bureau of Labor and Industries will make a template available to employers that meets the required notice provisions.  The Act also outlines when unlawful practices occur and a timeframe for when violations may be reported.

Is there anything else employers can do for their organization to comply?

Employers may conduct an equal-pay analysis – an evaluation process to assess and correct wage disparities among employees who perform work of comparable character – which may help with an alleged violation.  In a civil action, the court shall grant an employer’s motion to disallow compensatory and punitive damages if the employer demonstrates, by a preponderance of the evidence, that they:

• Completed, within 3 years before the date that the employee filed the action, an equal-pay analysis in good faith that was reasonable in detail and in scope in light of the size of the employer, and related to the protected class asserted by the plaintiff; and
• Eliminated the wage differentials for the plaintiff and has made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff.

If the court grants the motion, the court may award back pay only for the 2-year period immediately preceding the filing of the action and may allow the prevailing plaintiff costs and reasonable attorney fees, but may not award compensatory or punitive damages.

Delaware

The Basics

• Location: Delaware
• Legislation: House Bill 1
• Type: Salary History
• Effective: December 14th, 2017

Key Takeaways

• Employers and their agents may not screen applicants based on compensation history, or seek such history from the applicant or a current/former employer.
• Compensation includes monetary wages as well as benefits and other forms of compensation.

Who does this effect?

The law affects employers and employers’ agents.

When does this go into effect?

Delaware’s law will go into effect December 14, 2017 (Delaware Code § 709B).

What is prohibited in the law?

An employer or employer’s agent may not screen applicants based on their compensation histories, or seek the compensation history of an applicant from the applicant or a current or former employer.

Are there any 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 also 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.  Also, 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).

San Francisco

The Basics

• Location: San Francisco, CA
• Legislation: Ordinance 170350
• Type: Salary History
• Effective: July 1st, 2018

Key Takeaways

• Applies to applicants applying for employment in the City and whose application will be solicited, received, processed or considered in the City.
• May not inquire about applicant’s salary history, or consider or rely on salary history to determine an offer of employment or salary.
• Employers must post a notice provided by OLSE where employees work.

Who does this effect?

The law applies 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.  An applicant does not include a person applying for employment with their current employer.

When does this go into effect?

San Francisco’s law will go into effect July 1, 2018 (Police Code § 33J; Administrative Code § 12K).

What is prohibited in the law?

An Employer shall not:

• Consider or rely on an applicant’s salary history as a factor in determining whether to offer employment or what salary to offer;
• Inquire, directly or indirectly, about an applicant’s salary history (which includes current and past salary in a current or prior position with a current or prior employer, but not any objective measure of productivity such as revenue, sales, etc.);
• Refuse to hire, or otherwise disfavor, injure, or retaliate against an applicant for not disclosing salary history to the employer; or
• Release the salary history of any current or former employee to that person’s prospective employer without written authorization from the employee, unless required by law, is part of a publicly available record, or is subject to a collective bargaining agreement.

Are there any 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 cancelled 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.

What other requirements impact employers?

Employers shall post a notice of the requirements in a conspicuous location, where required, and shall send a copy to each labor union or representative of workers with which the employer has a collective bargaining or other agreement that is applicable to employees in the City or on City property.  The notice shall be posted in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at that location (multiple languages will be published by San Francisco’s Office of Labor Standards Enforcement OLSE).

Recommendations

We recommend reading each legislation in its entirety to determine the impact these may have on your organization, as well as review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws.  Seyfarth Shaw has also provided overviews you may read regarding the new Oregon, Delaware, and San Francisco pay equity laws. Please note:  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.

California Continues to Impact Employers with Ban the Box and Salary History Inquiry Restrictions

Governor Brown recently signed two new laws in California that may impact your hiring processes and practices.  Both laws will go into effect on January 1, 2018, and restrict employers’ use of criminal history and salary history during the employment screening process.

California Bans the Box

The Basics

• Location:  California
• Legislation: Assembly Bill 1008
• Type: Ban the Box
• Effective: January 1st, 2018

Key Takeaways

• Applies to employers with five or more employees.
• May not ask about criminal history prior to a conditional offer.
• Employers must conduct an individualized assessment if considering taking adverse action as a result of an applicant’s criminal history.
• Employers have additional obligations in the event they intend to take adverse action

Who does this effect?

The law applies to employers with five or more employees.

What is prohibited in the law?

Employers may not:

• Include any question that seeks the disclosure of an applicant’s conviction history on any application for employment prior to making a conditional offer;
• Inquire into or consider an applicant’s conviction history until after the employer has made a conditional offer of employment;
• Consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment:
  • Arrest not followed by conviction, except in the circumstances as permitted in California Labor Code Section 432.7;
  • Referral to or participation in a pre-trial or post-trial diversion program;
  • Convictions that have been sealed, dismissed, expunge, or statutorily eradicated pursuant to law;
• Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under Section 12952.

Can employers still consider and take adverse action based on an applicant’s criminal history?

Yes, but employers that intend to deny an applicant, in whole or in part, because of their conviction history must make an individualized assessment of whether there is a direct and adverse relationship with the job that would justify their denial of such job. The results of an individualized assessment may, but is not required to, be committed to writing.  In making an assessment, employers are to consider all of the following:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and completion of the sentence; and
• The nature of the job held or sought.

If an employer makes a preliminary decision that an individual’s conviction history disqualifies the applicant, the employer must notify the applicant of the preliminary decision in writing.  This notice must contain all of the following:

• Notice of the disqualifying conviction(s) that are the basis for the preliminary decision to rescind the offer.
• A copy of the conviction history report, if any; and
• An explanation of the applicant’s right to respond to the notice before the decision becomes final and the deadline to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant has at least 5 business days to respond before the employer may make a final decision. If, within the 5 business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision and that the applicant is taking specific steps to obtain supporting evidence, then the applicant shall have 5 additional business days to respond. Employers shall consider information submitted before making a final decision. If an employer makes a final decision to deny an application because of conviction history, the adverse action notice shall include:

• The final denial or disqualification, and the employer may, but is not required to, justify or explain the employer’s reasoning;
• Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and ü The right to file a complaint with the department.

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.

California Bans Salary History Inquiries

The Basics

• Location:  California
• Legislation: Assembly Bill 168
• Type: Salary History
• Effective: January 1st, 2018

Key Takeaways

• An employer shall 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.
• An employer must provide the pay scale for a position in which the applicant is applying for, upon request.

 

Who does this apply to?

All California employers, including state and local government employers and the Legislature.

What is prohibited in the law?

An Employer shall 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; nor
• Seek salary history information, including compensation and benefits, about an applicant for employment, orally or in writing, personally or through an agent.

What other requirements impact employers?

Employers must provide an applicant the pay scale information concerning the position if the applicant inquiries.

Are there any 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.

Recommendations

We recommend reading the entire legislation to determine the impact this may have on your organization, as well as review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws. Please note:  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.

Growing Trend to Enhance Pay Equity Laws by Restricting Use of Salary History

Several jurisdictions have recently passed laws prohibiting employers from inquiring about, or relying upon, a job applicant’s salary history.  These laws join the growing number of jurisdictions passing such laws in an effort to increase pay equity and ensure applicants are paid in accordance with the job they are being offered rather than based on their previous pay.

New York City

The Basics

• Location:  New York City, NY
• Legislation: Int 1253-2016
• Type: Salary History
• Effective: October 31, 2017

Key Takeaways

• Affects any employer with 4 or more employees.
• Employers may not inquire about an applicant’s salary history, or rely on salary history in determining compensation during the hiring process.
• Salary history includes wage, benefits or other compensation.

Who does this effect?

The law affects any employer with 4 or more persons in their employ. It is important for all impacted employers to read this Act and discuss with their legal counsel how it impacts their organization.

When does this go into effect?

New York City’s salary history law will go into effect on October 31, 2017 (Admin. Code § 8-107).

What is prohibited in the law?

Prohibits employers, employment agencies, or employees or agents thereof from inquiring about the salary history of an applicant for employment; or relying on the salary history of an applicant in determining compensation for such applicant during the hiring process, including the negotiations of a contract. Inquiry includes communicating any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purposed of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history, but does not include informing the applicant in writing or otherwise about the position’s proposed or anticipated salary or salary range. Salary history includes the applicant’s current or prior wage, benefits or other compensation, but does not include any objective measure of the applicant’s productivity such as revenue, sales, or other production reports.

Are there any exceptions?

Employers may, without inquiring about salary history, engage in a discussion with the applicant about their compensation expectations. Where an applicant voluntarily and without prompting discloses salary history to an employer, such employer may consider salary history in determining compensation for such applicant, and may verify such applicant’s salary history.  Each employer should review the law to evaluate if the law applies to their organization.

What other requirements impact employers?

The New York City Commission on Human Rights is expected to release further guidance regarding this law prior to taking effect.

Massachusetts

The Basics

• Location:  Massachusetts
• Legislation: S 2119
• Type: Salary History
• Effective: July 1st, 2018

Key Takeaways

• Applies to all employers (as defined).
• Employers may not request or require applicant to disclose prior wages, or seek salary history of a prospective employee from a current or former employer.
• Employers may not pay a lesser wage for comparable work, as defined.

Who does this effect?

The law applies to employers, defined as any person acting in the interest of an employer directly or indirectly.

When does this law go into effect?

Massachusetts’ “Pay Equity” law goes into effect July 1, 2018 (MGL Ch. 149, 151).

What is prohibited in the law?

A few of the prohibitions under the new law bar employers from:

• Screening job applicants based on their wage, including requiring an applicant’s prior wages satisfy minimum or maximum criteria, or requesting or requiring to disclose prior wages as a condition of interview or continued consideration for an offer of employment.
• Seeking the salary history of any prospective employee from any current or former employer.
• Paying a wage (incl. benefits or other compensation) less than employees of a different gender for comparable work, as defined.
• Requiring, as a condition of employment, that an employee refrain from inquiring about, discussing or disclosing information about either the employee’s own wages, including benefits or other compensation, or about any other employee’s wages.

Are there any exceptions?

Yes, exceptions to these prohibitions include, but are not limited to:

• A prospective employee may provide written authorization to a prospective employer to confirm prior wages only after any offer of employment with compensation has been made to the prospective employee.
• Variations in wages shall not be prohibited if based upon certain factors outlined, such as “a bona fide merit system,” “geographic location in which a job is performed,” or “education, training or experience to the extent they are reasonably related…”

Philadelphia

The Basics

• Location:  Philadelphia, PA
• Legislation: Bill 160840
• Type: Salary History
• Effective: Postponed

Key Takeaways

• Applies to all employers doing business in the City of Philadelphia.
• Employers may not inquire about or require disclosure of salary history, or rely on wage history from any current or former employer in determining wages.
• Adds the new law to an existing posting requirement.

Who does this effect?

The law applies to employers doing business in the City of Philadelphia through employees, or who employ one or more employees exclusive of parents, spouse, Life Partner or children, including any public agency or authority; any agency, authority or other instrumentality of the Commonwealth; and the City, its departments, boards and commissions.

When does this law go into effect?

Philadelphia’s “Wage Equity” law was slated to go into effect May 23, 2017 (City Code § 9-1103, 91131), but a lawsuit filed by the Chamber of Commerce of Greater Philadelphia has prompted the City to postpone enforcement until the litigation is settled.

What is prohibited in the law?

Some requirements include prohibiting employers, employment agencies, or agents thereof from:

• Inquiring (as defined) about, requiring disclosure of, or conditioning employment or consideration of an interview or employment on disclosure of a prospective employee’s wage history.
• Relying on a prospective employee’s wage history from any current or former employer in determining wages for such individual, including the negotiation or drafting of any employment contract, unless applicant knowingly and willingly disclosed wage history.

Are there any exceptions?

The law does not apply to any actions taken pursuant to any federal, state or local law that specifically authorizes the disclosure or verification of wage history for employment purposes.

What other requirements impact employers?

The legislation also adds to § 9-1103(i), making it unlawful for any person subject to the new law to fail to post and exhibit prominently, in any place of business where employment is carried on, any fair practices notice prepared and made available by the Philadelphia Commission on Human Relations, which the Commission has designated for posting.

Recommendations

We recommend reading the entire legislation to determine the impact this may have on your organization, as well as review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws.  Seyfarth Shaw has also provided overviews you may read regarding the new Philadelphia, New York City, Massachusetts, and Summary of 2016 pay equity laws.   Please note:  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.

California Further Restricts Use of Criminal History with New Regulations

The Office of Administrative Law recently approved the new regulations proposed by the Fair Employment & Housing Council (FEHC).  These regulations introduce additional limitations on the use of criminal history by employers, and also includes steps employers may need to take when making an adverse decision based on an applicant’s criminal history.  The new regulations take effect July 1, 2017.

The Basics

• Location:  California
• Legislation:§ 11017, 11017.1
• Type: Ban the box, Criminal History
• Effective: July 1, 2017

Key Takeaways

• Applies to employers with 5 or more employees.
• “Ban the box” restrictions are limited to state or local agency employers.
• Employers are prohibited from considering certain types of criminal history.
• Establishes a process to address adverse impact on protected classes.
• May not take adverse action, in certain circumstances, without providing notice to the applicant or employee, and following specific guidelines.

Who does this effect?

The law applies to employers or other covered entities (such as employment agencies, labor organizations, or apprenticeship training programs) regularly employing 5 or more individuals, including individuals performing service under any appointment, contract of hire, or apprenticeship.  This also includes the State of California, any political or civil subdivision thereof, counties, cities, city and county, local agencies, or special districts, regardless of employing 5 or more individuals.  It is important for all employers to read this Ordinance and discuss with their legal counsel how it may affect their organization.

Do these regulations "ban the box" for private employers?

No, this requirement is limited to state or local agency employers, who are prohibited from asking applicants to disclose information concerning their conviction history until they determine the applicant meets the minimum employment qualifications.  Private employers may still be required to “ban the box” under other laws, such as  Los Angeles and San Francisco so both private and public employers should be aware of their responsibilities, if any, in the applicable jurisdictions. This is the only section of the regulations that does not apply to private employers.

Are there restrictions on what criminal history information is sought or considered by employers?

Employers are restricted from seeking or considering certain types of criminal history, including but not limited to:

• An arrest or detention that did not result in conviction (Labor Code section 432.7);
• Referral to or participation in a pretrial or post-trial diversion program (Id.);
• A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code section 389 and Penal Code sections 851.7 or 1203.45) (Id.);
• An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law (Id.); and
• A non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8). California has expanded this restriction as current California law prohibits employers from asking only about certain marijuana-related offenses older than two years.

What process is established to address any potential adverse impact on a protected class?

• The applicant or employee bears the burden of demonstrating that the policy of considering criminal convictions has an adverse, or disparate, impact on a protected class (e.g., race, national origin, etc.).
• If the applicant or employee is successful, the burden shifts to the employer to establish that their policy is justifiable because it is job-related and consistent with business necessity by demonstrating that the policy or practice is appropriately tailored, taking into account at least:
  • The nature and gravity of the offense or conduct;
  • The time passed since the offense or conduct and/or completion of the sentence; and The nature of the job held or sought.
• If the employer is successful, the applicant or employee still has the opportunity to demonstrate there is a less discriminatory policy that services the employer’s goals as effectively without significantly increasing their cost or burden.

How do I demonstrate my policy or practice is appropriately tailored for the job? Employers may either:

• Demonstrate any “bright-line” conviction disqualification or consideration can properly distinguish between whether an applicant or employee poses an unacceptable level of risk and the convictions being used have a direct and specific bearing on the person’s ability to perform the job. In many cases, bright-line conviction disqualification or consideration policies or practices that include convictions that are seven or more years old likely are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense unless it meets one of the exceptions under the law. OR
• Conduct an individualized assessment of the circumstances and qualifications of the applicants or employees excluded due to their conviction(s). An individualized assessment must involve notice to the adversely impacted employees or applicants (before adverse action is taken) that they have:
  • Been screened out because of a criminal conviction;
  • A reasonable opportunity to demonstrate that the exclusion should not be applied due to their particular circumstances; and
  • Consideration by the employer as to whether the additional information provided or otherwise obtained warrants an exception and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.

Can employers still consider and take adverse action based on an applicant's criminal history?

Regardless if the employer utilizes an individualized assessment or has a bright-line policy, before adverse action may be taken based on conviction history obtained by a source other than the applicant or employee (e.g. a report or internally generated research), they must give the impacted individual:

• Notice of the disqualifying conviction; and
• A reasonable opportunity to present evidence that the information is factually inaccurate (and if it is established then that record cannot be considered in the employment decision).

Are there any exceptions?

Yes, please review and discuss with your legal counsel to determine if you meet one of the exceptions provided in the regulations.

Recommendations?

We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with changing laws and regulations. For additional details please refer to FEHC’s regulations. Seyfarth Shaw also posted an overview here. Please note:  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.

9Washington, DC amends Human Rights Act of 1977 with Restrictions on Credit Reports

Washington DC Bill 21-0244 amends the city’s existing “Human Rights Act of 1977” by signing the “Fair Credit in Employment Amendment Act of 2016” making it a discriminatory practice to use an applicant’s or employee’s credit information for general employment decisions.  This bill is the latest among a growing list of jurisdictions that have enacted such laws.

The Basics

• Location:  Washington, DC
• Legislation:B21-0244,Act 21-0673
• Type: Credit History
• Effective: March 17, 2017

Key Takeaways

• The law applies to any business or person who is subject to the District of Columbia Human Rights Act of 1977
• Employers must not inquire about or consider an applicant or employee’s credit history in employment decisions unless otherwise permitted in the Ordinance.
• The law establishes civil penalties to be awarded to any complainant who is found to have been unlawfully discriminated against based on credit history information

Who does this effect?

The restriction applies to all employers that employer one or more employees in in the District of Columbia  

What is prohibited in the law?

Employers, employment agencies, and labor organizations are prohibited from directly or indirectly requiring, requesting, suggesting, or causing a current or prospective employee to submit credit information.  It is illegal for these same employers to accept or inquire about credit information from a current or potential employee, and they are not allowed to take discriminatory employment action based on credit information.

Are there any exceptions?

Yes. Certain positions and employers fall under the specified exemptions, many of which relate to financial institutions, law enforcement agencies, and any employer that is required by state or federal law to obtain credit information on employees or prospective employees.   The amendment specifies the following job situations that may be exempt from following the restrictions:

• Whenever an employer is mandated by District law to require, request, suggest or cause employees to submit credit information;
• For any position with a law enforcement function within the District;
• For the position of the Chief Financial Officer of the District of Columbia;
• Whenever a position requires a security clearance under District law;
• For District government employees who are required to disclose their credit information to the Board of Ethics and Government Accountability or the Office of Inspector General;
• Financial institution jobs requiring access to consumer personal financial information

Can an employer take adverse action based on a credit report?

Yes, adverse action based on a credit report can be taken by an employer that meets the requirements as listed under the aforementioned exceptions.

Recommendations?

We recommend you review your organization’s policies and procedures with your legal counsel to ensure compliance with the changing laws. Please note:  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.

Los Angeles Approves Extensive "Ban the Box" Law for the City's Private Employers

The Los Angeles City Council approved Ordinance No. 184652, adding Article 9 to the City’s Municipal Code and creating some of the most extensive ban the box requirements to date. The new law will take effect on January 22, 2017 although penalties and fines will not be enforced prior to July 1, 2017.

The Basics

• Location:  Los Angeles, CA
• Legislation:Ordinance No. 184652
• Type: Ban the Box
• Effective: January 22, 2017

Key Takeaways

• Applies to Los Angeles employers with 10 or more employees.
• May not ask about criminal history prior to a conditional offer.
• May not take adverse action without completing and providing the written assessment(s) to the applicant, when required.
• Employers need to review job advertisements and post a notice.
• Civil penalties up to $2,000 will not be applied prior to July 1, 2017.

Who does this effect?

The law applies to employers located or doing business in Los Angeles that employ 10 or more employees. This includes job placement, referral, and other employment agencies, but not the City of Los Angeles or any other government unit. It is important for all employers to read this Ordinance and discuss with their legal counsel how it may affect their organization.

What is prohibited? Can employers still consider and take adverse action based on an applicant's criminal history?

Employers may not ask about criminal history prior to a conditional offer of employment.  A “Conditional Offer of Employment” under this Ordinance means the “offer of Employment to an Applicant conditioned only on an assessment of the Applicant’s Criminal History, if any, and the duties and responsibilities of the Employment position.”  There are varying interpretations as to what this means for employers so it is highly recommended each employer discuss this Ordinance, and your responsibilities, with your legal counsel. While employers may still consider an applicant’s criminal history, in order to take adverse action employers must:

• Conduct a written assessment linking specific aspects of an applicant’s criminal history with the position by, at a minimum, considering factors identified by the EEOC and those that may be required by the City’s Designated Administrative Agency (DAA);
• Provide applicants with written notice of proposed adverse action, a copy of their assessment, and any supporting information;
• Not take adverse action or fill the position for at least 5 business days so applicant may provide any relevant information;
• Consider any information or documentation provided by the applicant and perform a written reassessment when information is received;
• Notify applicants of the adverse action and include a copy of the written reassessment, when applicable.

Are there any exceptions?

Yes, please review and discuss with your legal counsel to determine if you meet one of the exceptions provided in the Ordinance.

What other requirements impact employers?

Employers must state they will consider qualified applicants with criminal histories in a manner consistent with the requirements of this article in all employment advertisements.  Employers must also post a notice informing applicants of the article’s provisions in a conspicuous place at every location in the City as provided by the Ordinance. Employers are also required to retain all records related to employment applications, including any written assessment and reassessments performed pursuant to this article, for a 3-year period following the receipt of an employment application.  

Recommendations

We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws.  For additional details please refer to the Ordinance.  Seyfarth Shaw has also provided an overview you may read here. Please note:  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.