The Trend in the Law is 'Don't Ask…'

Everyone working in human resources in Michigan knows that you can’t ask an applicant about any misdemeanor arrest that did not result in conviction because it is prohibited under the Elliott-Larsen Civil Rights Act

Everyone also knows that the Equal Employment Opportunity Commission frowns upon “the box” on employment applications asking if the applicant has ever been convicted of any crimes. 

But, did you know that companies having contracts (for goods or services valued at $25,000 or more) with the City of Detroit are prohibited from asking about criminal convictions of the applicant for a position that will fulfill the terms of the city contract before the job interview or until the applicant has been determined to be qualified for the position? City of Detroit, Code of Ordinances, Div 6, § 18-5-81, et seq.

Additionally , someone must sign an affidavit provided by the city that attests to being in compliance with the ordinance. There may be other cities having this sort of ordinance, so you should check with the cities granting your company contracts.

There is another trend that may eventually pop up in Michigan and that is a prohibition against asking an applicant about their prior pay rates. The idea is that, if the previous employer engaged in wage discrimination, it may perpetuate the lower wage rate repeatedly. 

During the first week in April, the New York City Council passed such an ordinance by a 48:2 vote hoping to close the gender wage gap disproportionately affects minorities especially Hispanics and African Americans.

New York’s Governor signed a similar measure to protect public sector hires. NBC News reports that there have been at least 180 bills introduced nationwide and that, while nearly 50 have failed, seven were enacted and dozens are still pending.

On March 17, HR Morning reported that similar measures have already been enacted in New Orleans, Philadelphia, and Massachusetts. 

A lawsuit was filed April 6 challenging the wage equity amendment (prohibiting the wage questions) to Philadelphia’s Fair Practices Ordinance: Protection Against Unlawful Discrimination. Phila. Code §§ 9-1103, 9-1131. The amendment not only subjects offenders to civil penalties, but also criminal penalties including up to 90 days in jail for a repeated offense.

Public Advocate Letitia James (who introduced the New York City bill in August) is quoted as saying: “Being underpaid once should not condemn one to a lifetime of inequality.” However, on April 27, 2017, the federal Court of Appeals for the Ninth Circuit (the most liberal bench of the federal appellate courts) ruled to the contrary.

In Rizo v Yovino, the employer started new hires at their prior salary plus a five-percent increase. The U.S. Court of Appeals for the Ninth Circuit rejected the argument that relying solely on an applicant’s prior wage rate is per se a violation of the Equal Pay Act because it perpetuates existing pay disparities. In doing so, it reversed the lower court and instructed it to consider the following four reasons the employer had provided for its practice: (1) it is objective; (2) by offering the prior salary plus five-percent increase it encourages applicants to leave their prior job; (3) the policy ensures consistency and prevents favoritism; and (4) the policy is a judicious use of tax dollars.

The rules are always changing for employers and it is hard to stay current. And, it’s even harder to know what you don’t know.

If you haven’t had your employment application reviewed lately (or your employee handbook), there is no time like the present. Contact an experienced employment attorney to ensure your company is not running afoul of new laws or regulations or missing out on potential defenses.

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