Retooling Your Hiring Process in 2018: Employment Applications
December 15, 2017
Susan S. Waag

Susan S. Waag

California employers have a greater burden managing a legally-compliant hiring process than those in other states. Failure to maintain valid hiring procedures will have a demonstrably negative effect on the long-term outlook of your business.

The new California laws going into effect on January 1, 2018 will require many changes in how employers handle recruiting and hiring, and it is important to be prepared before the new year starts. A legally-valid employment application form is a critical tool for collecting the information necessary to begin the selection process, and to begin weeding-out those that do not belong in your workforce.

Complicating the process in 2018 are two new laws that make it illegal to ask certain questions on an application form — questions that employers have regularly asked in the past. Employers will need to be sure they are using an application form that complies with these new laws. Accompanying these changes are new hiring procedures that managers must follow to avoid violating the new laws. Let’s take a look at some of our most frequently-used hiring questions that have now been banned!

Ban the Box

Previously, a handful of California cities made employment application questions about an applicant’s criminal background illegal — part of the so-called “ban the box” movement. Otherwise, under previous state law, California employers have been able to ask applicants certain questions about their criminal background — but not anymore.

Effective January 1, 2018, employers with 5 or more employees will be not be permitted to consider an applicant’s criminal history until after a conditional offer of employment has been made. In other words, if you want to know anything about an applicant’s criminal past, you must first issue a written offer that is conditioned on a satisfactory result of a subsequent criminal background check.

To Check or Not to Check?

With this new law, an employer can only protect itself, its other employees and its customers by doing a criminal background check after making the offer of employment. The decision to pay for this relatively expensive service has to be made by the individual business, often on a position-by-position basis. If a criminal conviction is uncovered, an employer must make an individualized assessment of the criminal convictions revealed by the check. This includes how long ago they occurred and how they relate to the specific employment offered, as well as other factors.

If the employer decides to revoke a job offer based on the candidate’s criminal history, they are burdened with providing the applicant with a laundry list of specific written information, including why the employer has judged that their criminal conviction disqualifies them from the job. After their written response, employers must also give the applicant a full five-day window to respond before making the decision final. Not surprisingly, other procedures and notices apply as well. This process causes additional delays in what is already a drawn-out hiring process.

Employers will need to revise their application forms to accommodate these “ban the box” legal requirements. Those who wish to consider criminal history of applicants will need to review their hiring procedures and start utilizing written offer letters and other methods to ensure compliance with the “conditional offer” procedures. Note that there are other timing issues related to this “ban the box” requirement that are beyond the scope of this article — consult a qualified employment law attorney for further details.

Pay History Now Secret, And Every Job Needs A “Pay Scale”

Also starting in January 1, 2018, California employers will be prohibited from seeking any information about an applicant’s previous pay history in any manner whatsoever. This means no questions on an employment application, in an interview, through a reference check, or via third-party information sources. The goal of this new law is to eliminate “gender-based wage discrimination” by eliminating the influence of “previous salary discrimination.”

Additionally, upon “reasonable request” by a job applicant, an employer will be required to provide the applicable pay range for the position.

Compliance with this law requires employers to revise their employment application forms, re-train staff involved in hiring, establish pay scales for each position and be prepared to provide a “pay scale” document for applicants who request the information.