It is imperitive for employers to stay up-to-date with employment laws.
In the ever-changing world of pre-employment compliance, it's important to stay on top of new legislation as well as new recommendations regarding certain statutes. Additionally, it's important to not only review what is going on a country and state level – but also on a municipality level to make sure your business is staying compliant in the hiring lifecycle. In recent state legislative sessions five compliance trends have come to the forefront: pay equality; data privacy; ban the box, or fair chance laws; and training, specifically about sexual harassment issues and drug testing. Let's take a look at pay equality and data privacy:
The pay equality movement is aimed at narrowing the gender wage gap while also protecting against discrimination based on gender. Almost every state has a law prohibiting discrimination based on gender while 10 states and local jurisdictions have legislation pending specifically related to pay equality.
Coinciding with pay equality, we also must take into account the salary history inquiry ban, laws that prohibit an employer from asking about current and prior salary pre-employment. Legislation involving this ban has moved at a rapid pace over the last two years:
- 24 states and local jurisdictions have enacted legislation
- 8 states have legislation pending
- 9 states and local jurisdiction enacted a salary history inquiry band this year
It's important to remember that even though the thought process behind salary history inquiry ban legislation is similar, the outcomes can be different. Several states have followed the path laid out by California and now require employers to provide a range of pay to potential candidates should the candidate ask for that information. Also, Colorado has enacted legislation that requires the salary range to be on the job posting.
SCENARIO – Sarah is recruiting for a difficult-to-fill position and would love to make sure she is on the same page as candidates early in the process to be mindful of their time. Sarah is in a state where there is a salary history inquiry ban. What can Sarah do?
- The first thing Sarah should do is work with her compliance and HR partners to understand the parameters about the ban, such as providing a pay range in the job posting.
- Next, as a best practice Sarah can always ask candidates what their salary expectations are. She must avoid asking about current or former salary.
- Sarah can also give candidates a pay range and ask if that is acceptable.
Going forward, it's imperative for you as the employer to make sure you are monitoring federal, state and local pay equality legislation and are reviewing each piece of legislation specifically. Remember – no two pieces of legislation are the same, even if they have the same purpose.
In our very data-driven world, data privacy has become a hot topic, including in pre-employment. Job candidates want to know their data is safe since the pre-employment employee life cycle often requires candidates to provide their phone number, Social Security number or date of birth.
In the last several years we have seen a surge in privacy legislation, starting with the General Data Protection Regulation in the European Union and due to the lack of U.S. federal privacy laws. States are working to protect against misuse of a person's personal information. As of 2018, all U.S. states and the District of Columbia have legislation that addresses data breaches.
In 2019 we have seen states pulling back on more restrictive data privacy/security laws such as the California Consumer Privacy Act, opting instead to enact legislation that requires the establishment of committees to review data privacy and security. This year we have also seen states tightening up their security breach requirements, often including a required notice period during which to inform candidates when their information has been breached, in addition to expanding the definition of personal information to include more identifying factors.
SCENARIO – Bill just received a request from a former candidate to delete the candidate's information from his company's applicant tracking system. What should Bill do?
- First, Bill should review the request and see what obligations his company has to delete the information. Is the candidate in the EU?
- Next, Bill should escalate to his in-house legal team to see if there is any legal reason to keep the information. Bill should also check company policy about data retention.
- Finally – after receiving feedback from all partners – Bill should execute on the decision made.
As we look into next year's legislative sessions, we need to remember the importance of monitoring privacy legislation, as fines can be hefty and states are continuing to enhance existing legislation.
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