Three Questions You Can Never Ask Prospective Employees
To avoid landing in legal trouble, association HR pros and hiring managers need to brush up on employment law, especially as it relates to what you can ask job applicants about their criminal, credit, or salary histories. Pro tip: It's best to not go there.
Now more than ever, HR professionals and other association staff members need to be sure where the legal landmines are in interviewing job candidates.
“Depending on the jurisdiction in which the employer is operating, there are laws that prohibit certain kinds of questions,” said Julia E. Judish, special counsel at Pillsbury Winthrop Shaw Pittman LLP. “It’s most often referred to as “ban the box,” because it’s prohibited on application forms, but it applies equally to interview questions.
Judish spoke about three major prohibitions, including questions on applications or during the interview process related to criminal history, credit history, and even salary history. But she’s quick to say that “the theme here is that employers really need to understand what the specific laws are in their jurisdiction because there’s not a single answer on this,” Judish said.
Here are three questions you shouldn’t ask:
What’s your criminal history? In many jurisdictions, employers can’t ask prospective employees about their criminal history on an application or during an interview. In fact, these bans “generally apply up to the extension of a conditional offer letter, and then an employer can do a background check and determine, depending on the state or the city law, what can or cannot be considered disqualifying,” Judish said. She also noted that sometimes there’s an analysis required for which kind of criminal history is disqualifying.
What’s your credit history? Bans on inquiring about credit history gained popularity after the recession. For some jurisdictions, there’s a ban on asking about credit history at all; for others, it’s permissive to ask after the extension of a conditional offer letter. However, there are certain exemptions. For instance, some jurisdictions say it’s permissive to ask about an individual’s credit history if they’re applying for a finance position.
“The credit history bans are similarly motivated by trying to ensure that people are not prevented from getting gainful employment by prejudices based on their past difficulties, especially since credit history trouble is more frequently associated with less affluent people,” Judish said. “It’s not necessarily a reflection on character.”
What’s your salary history? Increasingly, there’s a move to ban inquiries into prospective employees’ salary histories, so this is one to watch. “The idea is that an employer should be able to determine appropriate compensation for a position based on the position and the candidate’s job qualifications,” Judish said. “And they can also take in consideration an individual’s salary preferences, but the salary preferences aren’t necessarily the same as salary history.”
California, Delaware, Massachusetts, Oregon, as well as New York City and San Francisco, are among the jurisdictions that have already enacted these bans, but Judish said more than a dozen jurisdictions are actively considering them. “The motivation for the salary history ban is to reduce gender discrimination and racial discrimination in compensation practices—even unintentional discrimination,” Judish said. “When compensation is set based on an individual’s past salary history, that tends to perpetuate past inequitable compensation practices.”
What’s the risk in intentionally or unintentionally asking one of these banned questions? Although the salary history bans are new territory—California’s ban went into effect on January 1 and Massachusetts ban will go into effect on July 1—as of yet, Judish isn’t aware of any claims brought. However, Judish has seen a number of organizations served with charges for violating the criminal history ban.
How does your organization’s staff stay informed on what they can or cannot ask job applicants? Please leave your comments below.