The Growing Trend of Wage Inquiry Prohibitions

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In the past year or so, we’ve noticed an increasing legislative trend around the country — governing bodies passing bills to prohibit employers from inquiring about their job applicants’ wage history.  The precise details of these efforts naturally vary from locale to locale.  Still, whether at the federal, state, or local level, the rationale for these legislative efforts is often the same: they are efforts to close the gender wage gap.

This past August, Massachusetts became the first state in the nation to enact a statewide ban on the practice of employers seeking wage information from their applicants — a practice that many employers currently use as a matter of course in their hiring process.  Shortly thereafter, federal legislation seeking similar goals was introduced, and other states have started to get the ball rolling on their own legislation.  Cities have also joined the fray, with Philadelphia Mayor Jim Kenney signing a city ordinance to this effect several months ago.

Effective May 23, 2017 (that’s eight weeks from today, if you’re counting along with me), Philadelphia will become the first city to ban employers from asking about the wage history of job applicants.  The provision will take effect as an amendment to the City’s Fair Practices Ordinance and will be enforced by the Philadelphia Commission on Human Relations.  Our colleague Steven Ludwig has written an excellent summary of the law’s provisions, which you can find here.  Philadelphia employers should check out this information and begin planning (to the extent they have not done so already) to ensure their hiring procedures comply by May 23rd.

Moreover, in your author’s humble opinion, it’s highly likely that similar legislative efforts will continue to spread and gain steam across the country.  While the federal government is unlikely to act in the next two years, states and cities are likely to begin the process of following suit.  Employers should be mindful of the jurisdictions in which they operate and key tabs on legislative developments in this area that may affect their hiring practices.

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It’s Finally Spring! Time to Clean Your Job Postings

TSpring Cleaninghe equinox has come and went, meaning warm weather is thankfully approaching. This also means spring hiring season is here for many employers. However, caution is advised. Given the ease of un-vetted online job postings, many forget that these posts are legal minefields (and public too). Federal, state, and local agencies (as well as plaintiffs’ attorneys) can see job ads just as well as potential candidates. As you pack away the winter coats, make sure to dust off your job posts and remove any potential legal snares.

One of the most common issues we see regarding job ads is “preference” language. The Equal Employment Opportunity Commission (“EEOC”) explicitly states that it is “illegal for an employer to publish a job advertisement that shows a preference . . . because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” While this may seem obvious, inadvertent word usage that may show a preference for one protected category over another is often overlooked.

For example, the EEOC notes that the phrase “recent college graduates” may indicate a preference for younger employees, and may violate the law. In addition, historically gendered job titles are frequently used in the hospitality industry, such as “waitress,” “hostess,” or “delivery boy.” Government agencies will often argue that such terms indicate a preference for one sex, gender, or age over another, even if all sexes, genders, and ages were welcome to apply. Moreover, legitimate job requirements, such as “must be able to lift ‘x’ pounds,” must be evaluated with legal counsel to ensure that disability and accommodation laws are complied with, as well as to ensure no overtime exemption misclassification issues are created.

In addition, in some states and localities additional discrimination protections are offered above those available under federal law. The New York City Commission on Human Rights (“NYCCHR”) issued notable guidance in 2015 on the treatment of transgendered employees and applicants. The NYCCHR has since aggressively investigated offending job advertisements that indicate a proclivity toward traditional gender categories, among other problematic conduct. (More information on NYC’s transgender guidance is available here.)

However, remember that simply sanitizing one’s advertisements is not enough. Hiring practices matter too. The EEOC notes that “an employer’s reliance on word-of-mouth recruitment . . . may violate the law” where the newly hired employees mirror the current workforce.

In sum, it is critical to review all job advertisements for problematic language, and train human resources and hiring personnel to be aware of these issues. Discriminatory job language can cause unneeded headaches with federal, state, and local governmental agencies, or that job posting may be “Exhibit A” in your next lawsuit.

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