In 2017, states and local jurisdictions passed dozens of laws that affect the way employers hire, pay, schedule, and provide benefits to their employees. A new administration also entered the White House, ushering in new rules and different interpretations of existing rules. Here are the first five of 10 HR compliance trends to watch in 2018.
#1: Restrictions on Salary History Inquiries
Four states and four local jurisdictions have passed laws that restrict employers from making inquiries into an applicant’s pay history during the hiring process (under the premise that pay history may reflect discriminatory pay practices of a previous employer). Most of these laws were enacted in 2017, and several other states and cities will consider similar restrictions in 2018.
To date, the following jurisdictions have enacted restrictions on salary history inquiries:
If you are subject to one of these laws, remove salary history questions from application forms and train supervisors and hiring managers to avoid these questions during the pre-employment process, including interviews and reference checks.
Federal legislation banning salary history inquiries has also been proposed, but it is still in the early stages of the legislative process.
#2: Ban-the-Box Laws
Eleven states and over a dozen local jurisdictions have enacted laws restricting employers from asking about applicants’ criminal histories. These laws are commonly referred to as ban-the-box laws. Generally, these laws prohibit employers from asking about criminal history on application forms and during initial interviews. In some cases, these laws require employers to wait until they have extended a conditional job offer before asking about criminal history. In 2017, California became the latest state to enact a ban-the-box law (effective January 1, 2018), joining Connecticut, the District of Columbia, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont.
While there is no federal law specifically prohibiting employers from asking applicants if they’ve ever been convicted of a crime, the Equal Employment Opportunity Commission (EEOC) recommends employers avoid asking for this information on an application form. If employers do ask about convictions later in the selection process, the inquiries should be job related and consistent with business necessity.
#3: Anti-Harassment Requirements
In response to recent sexual harassment complaints in the media, academia, Hollywood, and Congress, federal, state, and local legislators will likely propose additional legislation aimed at combating sexual harassment in 2018. More states may consider requiring employers to provide harassment training or amend existing requirements (currently, only California, Connecticut, and Maine require such training). Some states will debate whether to limit non-disclosure agreements that prevent accusers from discussing their cases. Even in the absence of new legislation, many employers are reviewing their training, policies, and complaint procedures to ensure they are effective in preventing and responding to sexual harassment claims.
#4: Protections for LGBTQ Workers
Twenty-one states and several local jurisdictions have enacted laws that expressly prohibit employers from discriminating against applicants and employees on the basis of their sexual orientation or gender identity (a person’s gender-related identity, appearance, or behavior, regardless of whether it is different from that traditionally associated with the person’s physiology or assigned sex at birth). Two other states prohibit sexual-orientation discrimination but don’t expressly prohibit gender-identity discrimination.
While federal law (Title VII of the Civil Rights Act) doesn’t expressly prohibit sexual-orientation or gender-identity discrimination, the EEOC has taken the position that protections on the basis of sex extend to sexual orientation and gender identity. To date, the EEOC continues to maintain this position, though federal courts have generally been split on the issue. Expect additional decisions from the courts over the next year.
Meanwhile, some states continue to enact additional protections for lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) workers. For example, California published final regulations in 2017 that expanded and clarified protections on the basis of gender identity and gender expression. The state also enacted a law that requires employers to include gender identity, gender expression, and sexual orientation harassment training in mandatory sexual harassment training. The law also requires all employers to post a notice on transgender rights.
#5: Fair Scheduling
One state (Oregon) and five local jurisdictions (New York City, Seattle, and San Francisco, San Jose, and Emeryville in California) have enacted “fair” or “predictive” scheduling laws. These laws generally require employers to follow certain scheduling practices, such as advance notice of work schedules, notice of schedule changes, and providing “good faith” estimates of expected hours at the time of hire. They typically cover employees in the retail, food services, and in some cases, hospitality industries. Some additional jurisdictions (including Vermont and Berkeley, CA) require employers to respond to requests for flexible and/or predictable work arrangements but don’t require employers to necessarily grant such requests. If you are covered by one of these laws, review and understand the law in full to ensure your scheduling practices comply. This trend is expected to continue, so employers in other jurisdictions should watch for developments.
These are the first of several compliance trends to watch in 2018. Check back next week for five more trends that should be on your radar.