Employers already have to be on the ball when it comes to hiring. But as laws become more protective of employees and candidates, recruiters and hiring managers must also beware of what information they may and may not ask for. Two hot topics are salary history bans and background checks.
Many states are now banning employers from asking applicants for their salary histories and conviction or arrest records. These “ban the box” policies also delay background checks until later in the hiring process. These employment laws aim to give all candidates a fair chance at employment by mitigating stigmas and prejudices.
In this post, we’re outlining the basics, so employers know how to remain compliant during the hiring process, including:
- Salary history bans and why they matter
- States with salary history bans
- An overview of background check and ban the box laws
- States with ban the box laws
- Additional background check-related laws to keep an eye on
Salary History Bans
Requesting a candidate’s salary history has been common practice for employers for many years. However, this has led to discrimination issues, as recruiters and hiring managers tend to use salary history to:
- Exclude applicants from the pool for being “too expensive.”
- Disregard applicants with very low salary histories because they think they are unqualified or inexperienced.
- Calculate new hire compensation and perpetuate pay inequality between women and men.
A growing number of states have enacted laws that prevent employers from asking applicants for their salary history. The hope is this will remove those preconceived notions and encourage employers to hire based on skill and experience.
States with Salary History Bans
Below is a list of states with salary history bans. Note that each state’s laws vary by:
- Municipality: Some apply to the whole state; others only apply to a particular city or county.
- Type of employer: Some states have laws applicable to all employers, others only private, etc.
- Terms: Each law has specific terms of what an employer may or may not do and their responsibilities.
Check with your state Department of Labor for full details, or contact us to discuss your specific situation.
- Alabama
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Georgia
- Hawaii
- Illinois
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Mississippi
- Missouri
- New Jersey
- New York
- North Carolina
- Ohio
- Oregon
- Pennsylvania
- Puerto Rico
- South Carolina
- Utah
- Washington
- Wisconsin
State Background Check Laws
The Fair Credit Reporting Act (FCRA) is the federal law detailing how consumer credit information can be collected and used, including background checks. All employers must be FCRA compliant.
When hiring employees, employers must also beware of local background check laws. Many states have specific background check laws, from ban the box laws to social media usage and beyond. These laws intend to help prevent discrimination of marginalized groups, including minorities and those with prior convictions. They encourage organizations to hire people who have experienced disparate treatment and give them a chance at a fresh start.
States That Ban the Box
Currently, 37 states, the District of Columbia, and more than 150 cities and counties have adopted ban the box laws – also known as fair chance policies – which apply to public employers. As the name implies, these laws help ensure people with criminal records have equal employment opportunities in most jobs. States that ban the box for public employers include:
- Arizona
- California
- Colorado
- Connecticut
- Delaware
- Georgia
- Hawaii
- Illinois
- Indiana
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Missouri
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- Tennessee
- Utah
- Vermont
- Virginia
- Washington
- Wisconsin
The 15 following states extend their fair chance laws to private employers:
- California
- Colorado
- Connecticut
- Hawaii
- Illinois
- Maine
- Maryland
- Massachusetts
- Minnesota
- New Jersey
- New Mexico
- Oregon
- Rhode Island
- Vermont
- Washington
Before you run a pre-employment background check, refer to your local employment laws to ensure you do so legally.
Additional Hiring & Background Check Laws
More and more states and municipalities are implementing background check laws that go even further. Below are a few examples.
Illinois Genetic Information Privacy Act
Illinois employers may not discriminate against candidates or employees who do not share their genetic history. This law applies to all employers in the state. With genetic testing on the rise for various reasons, similar laws are being implemented in other states. Businesses should keep an eye on related laws in their area.
Use of Social Media
We are also seeing an increase in state laws regarding the use of social media.
Some states, like Vermont, do not allow employers to use social media during the hiring process. This means they may not ask, require, or force an employee to provide information about their social media accounts, including their username or password. Vermont also prohibits employers from asking employees to:
- Change their account access information
- Bring up their social media accounts in their presence
- Add their coworkers, supervisor, or anyone else to their list of contacts (i.e., their “friends” or “followers” list)
Certain states allow employers to request social media account information under certain circumstances, such as Tennessee.
Currently, 26 states plus Guam have enacted social media privacy laws that apply to employers, including:
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- Hawaii
- Illinois
- Louisiana
- Maine
- Maryland
- Michigan
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- Oklahoma
- Oregon
- Rhode Island
- Tennessee
- Utah
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
When it comes to managing existing employees’ social media usage, things can get tricky. Check out our blog on creating a social media policy and guidance on what employers can and cannot do.
Do you have questions about your state’s salary history and background check laws? Or do you need help navigating a specific hiring situation? Our human resources experts are here to help! Contact us today at 603-818-4131 or info@bluelionllc.com.
The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.
