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3 emerging trends for employers to watch

by Bryan R. Cokeley

The following article provides an overview of how the law might change in the near future based on three issues that employers across the country have been grappling with. 

1. Ban-the-box legislation
The United States incarcerates a larger percentage of its population than any other industrialized country. Consequently, our correctional facilities disgorge great numbers of convicted felons into society. Recently, there have been initiatives to remove employment barriers for those individuals. The effort to stop the practice of screening applicants for criminal convictions (and arrests) springs from two concerns.

First, there’s a belief that people who have been incarcerated have paid their debt to society. Accordingly, barrier s should be removed to allow individuals with convictions on their record to reenter the workplace.

In the 25 states where employers may not inquire about criminal convictions during the application process, an employer may still be able to check criminal convictions after a job offer has been made but before actual employment begins. The employer can then evaluate whether the underlying conduct is incompatible with the job in question.

The focus is on the nature of the job and the circumstances of the conviction. Applicants cannot be rejected merely because of a conviction. The framework is similar to the Americans with Disabilities Act (ADA) provision that prohibits employers from making preoffer medical inquiries but allows them to determine whether an applicant is medically and physically able to perform the job before the actual work begins.

A second concern relates to the proven statistic that minorities—especially young African-American males—get arrested at a higher rate than nonminorities do. Consequently, the Equal Employment Opportunity Commission (EEOC) has counseled that inquiring about arrest records on job applications can have a disparate impact on minorities—that is, the practice tends to weed out minorities without any individualized assessment of the job or the circumstances of the arrest.

The EEOC’s guidance on banning the box doesn’t have the force of law. Employers in states without laws forbidding it can still inquire about arrest records on applications. Given where society is evolving on this point, however, you need to question whether there’s a need to know at the preoffer stage about an arrest that didn’t result in a conviction.

2. Salary inquiries during interviewing and hiring
Pay disparity between employees of the opposite gender continues to be a problem in our society, despite decades of legislation and litigation. One school of thought is that an employer’s ability to quiz applicants about their salary history results in the employer—perhaps innocently—perpetuating gender discrimination in its pay structure.

Take the example of a female employee who is working in a job at a salary that’s 20 percent lower than she should make in a gender-neutral workplace. If a prospective employer is able to inquire about her salary, then it may not be inclined to offer her the market rate when it decides to hire her. Rather, it might base its offer on the suppressed pay at her current job. Hence, the pay disparity cycle continues.

A few municipalities and one state (Massachusetts) have now banned employers from asking on job applications or in job interviews about applicants’ salaries at former jobs. If the applicant raises the subject during the interview, the employer may discuss salary with the applicant. Otherwise, the applicant may remain silent on the subject, and the employer must base its pay offer on the inherent value of the job or market demands rather than the pay history the applicant brings to the job.

3. Predictive scheduling
It has been a feature of the American workplace that employees’ schedules must bend to the needs of employers, especially in nonunionized jobs. There’s nothing an employee can do about the directive “I’m sorry, John, but I will need you to work this Saturday,” other than perhaps draw overtime. However, millennials, with their instinct to be protective of their time, have had a different reaction to the traditional employer prerogative. They don’t like it.

As a result, a few municipalities have passed legislation under the banner of “predictive scheduling” for certain segments of the economy—notably, the retail and restaurant industries. Under predictive scheduling laws, an employer must provide employees notice of their schedules at least two weeks in advance. Once notice has been given, the employer cannot deviate from the schedule unless it can show hardship.

The “hip” thinking is that certainty and stability in scheduling allows an employee to arrange her life around the job rather than having the job run her life. The concept has caught hold in just a few municipalities, and it’s clearly incompatible with many occupations, such as health care and professional services. Yet it’s likely to garner support in certain locales.

Bottom line
As the federal government begins to pull back from the labor activism of the last eight years, we can expect to see an increase in “federalism”—that is, local and state governments going their own way in regulating the workplace. Employers would be well served to keep an ear to the ground on cutting-edge developments in employment law, including the issues set forth in this article.

Bryan R. Cokeley is an attorney with Steptoe & Johnson PLLC, practicing in the firm’s Charleston, West Virginia. He may be contacted at  bryan.cokeley@steptoe-johnson.com.