State and Local Laws

2018 Mid-Year Update on Background Screening Legislation

Employment background screening legislation remains popular with both state and local lawmakers. To help keep track of the ever-changing legal landscape, we have compiled a list of the jurisdictions that have enacted “ban-the-box” measures, credit check restrictions and salary inquiry prohibitions.

Ban-the-box jurisdictions continue to grow with new 2018 additions

“Ban-the-box” measures, which generally prohibit employers from inquiring about a candidate’s criminal history (including performing background checks) until later in the hiring process, and impose significant compliance requirements, continue to expand to jurisdictions across the country. A total of 31 states, the District of Columbia and more than 150 cities and counties have adopted some version of a ban-the-box or “fair-chance law.”

Specific to private employers, 11 states have laws in place mandating the removal of conviction history questions from job applications for private employers: California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington.

The most recent entry to this list is Washington. Enacted this year, the state’s ban-the-box bill requires that employers wait to perform a background check or ask about criminal history until after determining that a candidate satisfies the basic criteria for the job and is “otherwise qualified” for the position. Policies that categorically exclude applicants with a criminal record are also banned by the law, and employers are prohibited from advertising in a manner that excludes those with criminal records from applying. Washington’s new law took effect June 7, 2018.

A total of 18 localities have fair chance hiring laws in place for private employers. Austin, Baltimore, Buffalo, Chicago, Columbia (Missouri), District of Columbia, Los Angeles, Montgomery County (Maryland), New York City, Philadelphia, Portland (Oregon), Prince George’s County (Maryland), Rochester (New York), San Francisco, and Seattle, were all in effect as of 2017.

2018 has seen new additions in Kansas City (Missouri) and Spokane, Washington. Kansas City initially enacted a ban-the-box law in 2013 that was limited to city workers. This year, the Kansas City Council expanded the measure to encompass private employers as of June 9, 2018. In Spokane, the ordinance was enacted in December 2017 and took effect with regard to private employers as of June 14, 2018.

Credit check restrictions less popular, but still relevant

Roughly a dozen jurisdictions also feature restrictions on the use of consumer credit reports for employment purposes. Ten states – California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington – as well as Chicago, the District of Columbia, New York City, and Philadelphia, all place restrictions on employers’ use of credit reports with exceptions for the use of such checks when it is required by law or the responsibilities of the position justify it.

While less trendy than ban-the-box legislation, prohibitions on the use of credit reports remain a relevant concern for employers given the variances across different states and cities.

Bans on salary inquiries expanding rapidly

One of the hottest trends in state legislatures is the passage of bills that ban inquiries into an applicant’s salary history. The trend grew out of the equal pay movement, based on the theory that by relying on prior salary to select the pay for a new job, employers are perpetuating a wage gap. Many states – and local jurisdictions – have jumped on the bandwagon to prohibit employers from asking candidates about their salary history. Below is a collection of the jurisdictions that have enacted legislation for private employers.

  • California – Effective January 1, 2018, employers are banned from asking about an applicant’s pay history or using such information (even if the applicant volunteers it or the employer already has it). Within the state, San Francisco has its own law, effective July 1, 2018, which prohibits employers from asking about or considering a candidate’s current or prior compensation.
  • Connecticut – Beginning January 1, 2019, employers are prohibited from asking about an applicant’s pay history unless the individual voluntarily discloses the information.
  • Delaware – One of the first states to prohibit salary inquiries, the law provides that employers may not ask candidates about salary history or screen applicants based on past compensation. Once an offer is extended, the employer may confirm the information.
  • Hawaii – Another newcomer to the legislation, the ban on asking about salary history goes into effect on January 1, 2019 and includes a prohibition on considering the information when determining salary, benefits or other compensation during the hiring process.
  • Massachusetts – Part of a package of employment-related laws enacted by the Bay State, employers are prohibited from asking applicants for salary history information. Once an offer has been extended, employers are permitted to confirm prior pay. The law took effect July 1, 2018.
  • New York City – In addition to banning prior salary inquiries, the City’s ordinance does not allow employers to use such information if they already have it. Two counties in New York state also enacted their own laws: in Albany County, employers may only request information about past compensation and benefits after a job offer has been made, while in Westchester County, information about prior wages may not be requested and may only be confirmed under limited circumstances.
  • Oregon – Another early adopter of the ban on salary inquiries, the state’s statute requires that an offer of employment be extended before employers may ask about pay history.
  • Philadelphia – The City of Brotherly Love enacted a ban on salary inquiries only to have the measure challenged in court as a violation of the First Amendment. In May 2018, a federal court judge granted a preliminary injunction halting the ordinance in light of the pending litigation.
  • Puerto Rico – The Commonwealth outlawed inquiries into salary history as of March 8, 2017, although the measure contains exceptions for confirmation after a job offer has been made as well as voluntary disclosures.
  • Vermont – Another recent adopter, the Vermont legislature prohibits employers from requesting pay history from candidates as of July 1, 2018. If the candidate volunteers the information, an employer may only confirm after an offer of employment has been made.

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