New California laws introduce prohibitions on questions concerning a job applicant’s salary history and criminal convictions. Employers should avoid these five questions:
1. Have You Ever Been Convicted of a Crime?
It is now illegal in California to ask this question before an employment offer is made. Under the new law California employers with more than five employees cannot include on any job application a question that seeks disclosure of an applicant’s conviction history, or that asks about or considers the conviction history of an applicant until he/she has received a conditional offer. It also prohibits the employer from consideration, distribution, or dissemination of information related to certain prior arrests, diversions, and convictions when conducting a conviction history background check. San Francisco ordinances provide even greater protections to job candidates and include stiff penalties for violations.
2. How Much Do You Currently Make?
California employers cannot ask job applicants for “salary history information” or rely on that information in deciding whether to offer a job or to set salary unless the applicant voluntarily discloses the information. If voluntarily disclosed, the employer may consider or rely on that information in setting salary so long as prior salary is not the only factor that justifies the pay disparity. While employers cannot ask about salary history information they can ask about an applicant’s salary expectations for the position.
3. Where Are You From?
This type of question can be interpreted to be a forbidden inquiry about the applicant’s national origin. Employers must not ask questions about a candidate’s citizenship unless U.S. citizenship is a legal job requirement. Employers may ask whether the applicant has a legal right to work in the United States, so long as the question is not asked on a selective or discriminatory basis.
4. When Did You Graduate High School?
Under California’s FEHA and the Federal Age Discrimination in Employment Act, questions about a candidate’s age are prohibited. Thus, employers should avoid questions that might reveal a candidate’s age, such as “What year did you graduate high school?” An employer may ask a candidate’s age only if the job has a minimum age requirement (for example, a bartender).
5. Are You Married?
Inquiries about parenthood and marital status are prohibited. Therefore, employers should not ask whether an applicant is married, pregnant, or plans to be in the future. Such questions are permissible once the applicant is hired.
We suggest that California employers read the fact sheet developed by California’s Department of Fair Employment and Housing, which offers further guidance on questions employers can ask applicants. However, to assure compliance in your business we recommend that employers thoroughly prepare their interview questions in advance, vet them with the Company’s legal counsel, and assure that during the interview the interviewer remains on script.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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