prohibited interview questions

It is that time of year.  We continue to wait for the Governor to sign or veto some controversial bills such as:

  • The Stand Act (prohibiting confidentiality in harassment and sexual assault settlements); and
  • AB 3080 (prohibiting mandatory arbitration for new and current employees, but presumably allowing arbitration with an opt out, and prohibiting nondisclosure of harassment issues to protect future employees going forward).

As we wait, there was one bill recently passed that clarifies a few things about California’s salary history ban that is worthy of a quick mention.

As you may recall, effective this year, employers were prohibited from asking an applicant about his/her salary history.  Employers are also required to provide pay scale information to an applicant on the position applied for upon reasonable request.  Recently, some of those terms have been clarified, as follows:

  1. First, an applicant is now defined as an individual seeking employment who is not currently employed with that employer in any capacity or position.  So current employees are not entitled to pay scale information.
  2. Second, a reasonable request, is now defined as a request made after an applicant has completed an initial interview with the employer.  This would prevent someone not qualified for a position from obtaining salary range information about it.
  3. Third, pay scale is defined as a salary or hourly wage range for the position.  Not quite sure what the confusion was there.
  4. Fourth, as most of us already surmised, it is perfectly acceptable to ask an applicant about his/her salary expectations.
  5. And finally, while prior salary cannot justify any disparity in compensation, an employer can consider current salary as a factor to justify a wage differential as long as it is based on:
    • A seniority system;
    • A merit system;
    • A system that measures quality or quantity of production; or
    • A bona fide factor other than sex, race or ethnicity (such as education, training, or experience).

Now if only the legislature would take up some very serious issues facing employers, especially after Dyanmex (and the resulting war against contractor status), such as my personal favorite idea, to create a new category of workers called “dependent contractors”.  Maybe next term.  One can always hope.

The laws about what employers can ask job applicants continue to evolve. Here are four areas of inquiry that are not allowed:

  1. Questions about prior salary – With the passage of AB 168, effective January 1, 2018, employers cannot ask applicants for employment about salary history information, including information about compensation and benefits.
  2. Questions about criminal convictions before making a conditional offer of employment – Following the leads of San Francisco and Los AngelesAB 1008 prohibits employers with five or more employees from:
    • Asking on employment applications about criminal convictions;
    • Asking applicants about criminal convictions before making a conditional offer of employment;
    • When conducting background checks on applicants, considering, distributing, or disseminating information about prior arrests not leading to conviction, participation in diversion programs, or convictions that have been sealed, dismissed, expunged, or otherwise nullified. Employers who wish to rely on criminal conviction information to withdraw a conditional job offer must notify the applicant of their preliminary decision, give them a copy of the report (if any), explain the applicant’s right to respond, give them at least five business days to do so, and then wait five more business days to decide what to do when an applicant contests the decision. There are exceptions for employers who operate health facilities hiring employees who will have regular access to patients or drugs.
  3. Questions about membership in protected categories – These questions have been prohibited in some cases for over 50 years. But too many interviewers don’t understand the nuances. Inappropriate questions include:
    • What kind of name is that?
    • What’s your maiden name?
    • How old are you?
    • Do you live alone?
    • Who do you live with?
    • What year did you graduate?
    • How old are your children?
    • Do you plan to have children?
    • What church do you attend?
    • What does your spouse do?
    • Is English your first language?The DFEH published this handout discussing these issues and listing other improper questions.
  4. Medical inquires before an offer of employment – At the pre-offer stage, employers may not make generalized inquiries about a job applicant’s health, present medical condition, or any disability. Nor may employers conduct medical or psychological exams at the pre-offer stage or ask about medical history, on-the-job injuries, workers’ compensation claims, or absences due to illness. The EEOC announced this month that it settled a suit with a staffing agency regarding pre-offer medical inquiries.

Make sure that the people interviewing for your organization are up to date on what areas of inquiry are not allowed.