Don’t Ask – Don’t Tell in Job Interview?

by Ruder Ware
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A number of states have passed legislation prohibiting an employer from asking a candidate for a new job about his or her salary history in other employment settings.  While such a law has not passed in the State of Wisconsin, there is clearly a ground swell of support for employers to stop asking salary history questions during a new employee interview.  The claim is that salary history information can lead to discrimination on the basis of sex by impacting the amount of salary that would be offered to a candidate and the potential disparate treatment of female applicants based upon a history of unequal salary levels.  There is also growing opposition to asking questions about arrest or conviction records of an applicant and delaying any consideration of criminal background records until making the final decision on hiring an applicant.  Both of these considerations limit the ability of a company to get background information on a candidate to ensure the best candidate for the position is selected.
 

Employers need to consider the balancing test between gathering as much information as possible about a candidate compared to perpetuating pay differentials based on sex or preventing a reformed candidate from being considered for gainful employment after making judgment mistakes in the past.  Many states have said salary history should not be a part of the hiring process and employers are prohibited from asking about salary history of a candidate in the employment application materials or during the interview process.  It may be beneficial to ask the candidate what his/her salary expectations are for the position but avoid background information regarding current or past salary history in other employment positions held by the candidate.

Asking about prior convictions is also subject to recent legislation in various cities throughout the country.  “Ban the Box” legislation has been adopted in various locations which prohibits the employer from asking if the candidate has been subject to previous convictions even if the question tries to limit the focus on prior convictions that substantially relate to the job being filled by the company.  The State of Wisconsin no longer asks that question on its employment application but such a “ban” has not been extended to other employers (either public or private) in the State.  Other employers may want to follow the lead of state government and open the door for convicted felons to be given the same consideration for a position as any other candidate.  Again, there is a balancing act between the desire of the company to obtain as much information as possible about potential employees compared to the desire to give convicted felons an opportunity to better themselves and become a successful employee after having “served their time” for the violation.  Employers need to decide how best to address the challenge of filling a position with limited candidates and the willingness to be flexible when considering the background of a particular candidate.

The hiring process can be very challenging for an employer.  Today’s employee market is very tight and often an employer has to lower their expectations in order to find someone to fill a vacant position.  Limiting the information an employer receives during the application and interview process will make decisions more difficult but will also support community and societal goals.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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