Employers must give careful consideration to questions asked during the hiring process. While most employers are aware that they cannot ask questions that directly relate to a prospective employee’s protected status (age, gender, religion, national origin, disability, etc.), employers also need to be mindful to exercise care when inquiring into a prospective employee’s criminal history and/or compensation history.
Criminal history inquiries and questions regarding a prospective employee’s compensation history remain an important tool for employers. They are a necessary and vital means by which employers may protect themselves against various forms of liability, including negligent hiring claims. Given the increasing risk of liability, however, employers should proceed with caution with respect to both inquiries throughout the application process.
Solution: Stay Abreast of Any Changes in New Jersey Law and Update Application Materials to Ensure Compliance with Those Changes.
Inquiries Regarding Criminal History
On August 11, 2014, New Jersey enacted “The Opportunity to Compete Act”- also referred to as the “ban the box” law – adding New Jersey to the growing list of states where employers are prohibited from asking criminal conviction questions on initial employment applications. Under this law, employers are also prohibited from making statements that they will not consider applicants who have been arrested or convicted of crimes when advertising for the position.
While employers are prohibited from inquiring into a prospective employee’s criminal history during the initial application process, that process ends when an employer has conducted the first interview. Additionally, the law does not prohibit an applicant from voluntarily disclosing information about his or her criminal record during the initial application stage. Moreover, employers are not prohibited from refusing to hire an applicant based on his or her criminal record, unless the record has expunged or erased, provided the refusal is consistent with any other applicable laws. Nonetheless, in order to limit exposure to liability under the Act, employers should do the following:
- Review job application forms to remove any questions seeking information regarding an applicant’s criminal history;
- Withdraw advertisements that indicate that the employer will not consider applicants who have been arrested or convicted of a crime; and
- Train internal recruitment personnel to avoid inquiry into an applicant’s criminal history until after they have conducted an initial interview of the applicant.
Inquiries Regarding Compensation History
Towards the end of 2016, the New Jersey State Assembly reviewed Assembly Bill 4119 (“A-4119”), which would amend the New Jersey Law Against Discrimination to prohibit employers from seeking compensation history from prospective employees. The purpose of A-4119 is “to strengthen protections against employment discrimination and thereby promote equal pay for women[.]”
Specifically, A-4119 provides that an employer may not seek the salary history of a prospective employee until an offer of employment is extended to the candidate. The Bill further prohibits an employer from requiring an employee to disclose information about either his or her own wages, including benefits and other compensation, as well as the wages of any other employee. Additionally, A-4119 provides that an employer may not require that a prospective employee’s wage or salary history meet any minimum or maximum criteria as a condition of being interviewed or as a condition of being considered for an offer of employment. The Bill, however, does not prohibit prospective employees from volunteering compensation history provided that the disclosure is not coerced by the employer. An employer may only confirm or permit a candidate to confirm compensation history after making an offer of employment.
If passed, the proposed law would have a significant impact on the hiring process in New Jersey. First, employers would need to revise application materials to eliminate any written questions concerning a candidate’s salary history. Interview questions would also need to be amended to reflect this change. In doing so, an employer could no longer use salary as a criterion to determine what candidates would be most likely to pursue an employment opportunity with the employer based upon a desired salary range. Additionally, any economic considerations employers previously took into account when reviewing salary history could no longer be a factor in the hiring process. Moreover, and perhaps most importantly, an employer would be deprived of this information during the negotiations process. Typically, salary terms are a critical point of discussion amongst employers and potential candidates during the hiring process. Under this proposed legislation, however, salary and wage history may only be confirmed after an offer of employment has been made. Therefore, employers would be deprived of this crucial step during the hiring process.
We will continue to monitor this legislation and provide any relevant updates should its status change.