The hiring process can be stressful and discouraging, leading applicants to feel as though they do not have control over their futures. However, regardless of the job they are pursuing, applicants still have rights within this process that employers must respect.
During the hiring process in most New York state counties, private and public employers are prohibited from inquiring about certain topics and making judgments based on an applicant’s particular characteristics. To adhere to applicants’ rights, employers should familiarize themselves with prohibited topics and judgments within the following areas:
- Arrests or criminal accusations and history
- Salary history
- Discrimination
Who is Considered an “Applicant?”
First, it is important to determine who qualifies as an “applicant,” thus receiving protection during the hiring process. An “applicant” is a person who is actively seeking employment. This person is typically not currently employed by the company or individual they are pursing employment with, but they can be. “Applicant” includes a range of potential employees, such as full-time, part-time, seasonal and temporary workers.
These prohibitions are relevant to applicants applying for positions that will be primarily based in New York, regardless of whether the interview process is virtual, through a phone call or conducted in another state.
What Should Employers Avoid When It Comes to Arrests or Criminal Accusations and History?
Employers are generally barred from asking questions about information related to arrests or criminal accusations and criminal history. For example, employers may not inquire or deny employment based on criminal information, such as non-pending arrests, convictions, criminal accusations, adjournments in contemplation of dismissals, youthful offender adjudications and sealed convictions. The various rules and requirements regarding what employers can ask about vary between counties.
For example, in New York City, the New York City Fair Chance Act (“FCA”) and “Ban-the-Box” law prohibit employers from inquiring about an applicant’s criminal history until after the applicant receives an employment offer. These laws encourage employers to focus on applicants’ current skills and qualifications, rather than their pasts. If an NYC employer decides that they want to run a criminal background check and potentially take adverse action against the applicant based on that information, there is a specific protocol in place to preserve the applicant’s rights. The FCA requires the employer to:
- Provide the applicant with a written copy of the search;
- Provide the applicant with an Article 23-A Evaluation Form; and
- Provide the applicant with at least three business days to respond to the form, holding the applicant’s position open during this time.
What Should Employers Avoid When It Comes to Salary History?
Since January 6, 2020, Labor Law Section 194-a prohibits employers from asking (orally, in writing, directly, indirectly or through an agent) for any information regarding an applicant’s salary history, including compensation and benefits. Employers are also prohibited from relying on applicants’ salary history when deciding whether to interview applicants, offer applicants employment and determine employees’ wages.
In addition to prohibiting gaining salary history from the applicants, themselves, employers cannot obtain salary information from separate sources, such as prior employers. Employers also cannot retaliate against applicants or employees for refusing to provide their salary history.
What Should Employers Avoid When It Comes to Possible Discrimination?
Regardless of the state or county, all employers must adhere to Title VII of the Civil Rights Act of 1964, which protects applicants and employees from discrimination on the basis of race, religion, color, sex, gender and national origin.
Additionally, New York State and New York City both have laws that employers must adhere to. The New York State Human Rights Law and the New York City Human Rights Law also protect against discrimination and harassment in the workplace. As of 2020, the New York State Human Rights Law applies to all New York State employers, regardless of how many employees they have.
What Can Employers Do to Comply with These Requirements?
Employers should ensure that their application documents and communications do not include the prohibited topics. In addition, employers must engage in fair screening policies, treating all applicants equally regardless of their backgrounds.
Employers should train their staff to follow specific hiring protocols that certify that these topics will not be discussed with applicants. Employers can take this a step further by explicitly mentioning in job applications that salary and past criminal history information will not be sought during the application process.
If applicants voluntarily reveal the prohibited information, employers should not panic. Applicants are allowed to volunteer certain information, such as salary history, so long as there is no prompting or coercion on the part of the employer. For example, an applicant may voluntarily bring up their previous salary if they desire a higher wage.
Conclusion
If you want to evaluate your rights as an applicant or employer during the hiring process, you should seek the advice of a qualified attorney. A lawyer can help ensure you or your company is aware of what can and cannot be discussed during the hiring process.
