I had the opportunity to talk with a Medical Center’s Director of Corporate Compliance about “No Ask”. Healthcare organizations have on-staff HR professionals who keep close track of “No Ask” developments – and what’s necessary to be in compliance.
I just want to share my thoughts, starting with some background information.
For many years, the federal government and most states have prohibited employers from discriminating on the basis of gender in the payment of wages. Those prohibitions are usually referred to as “Pay Equity” or “Equal Pay” laws.
More recently, states and local jurisdictions have added “No Ask” amendments that explicitly prohibit employers from inquiring about the compensation history, including both salary and benefits, of a prospective employee.
The original thinking behind “No Ask” is that women have traditionally been paid less than men and are more likely to have experienced what’s called “pay discrimination”.
“No Ask” laws were enacted to prevent employers from using an applicant’s compensation history in making an initial compensation offer. Women have traditionally been paid less than men and are more likely to have experienced pay discrimination. The prohibition on requiring disclosure of wage and salary history is intended to stop employers from continuing the presumably unequal pay practices of previous employers.
To strengthen these protections and attempt to close the gender-based pay gap, many states and local jurisdictions have amended their pay equity laws to explicitly prohibit employers from inquiring about the compensation history of a prospective employee, including salary and benefits.
As of August of this year, 17 states and 19 local governments have passed and enacted or have pending dates for banning salary history questions.
“No Ask” varies from state to state. While each is a little different, they all have in common the prohibition on asking prospective employees about their compensation history before an offer of employment is made.
To comply with “No Ask”, applicants can’t be asked about their pay history before they’re made an offer of employment. For example, job applications can’t include questions about wage and salary history. Any initial offer of compensation must be made without reference to compensation history.
Instead of directly asking about a candidate’s past compensation, it’s okay to ask:
- How much would you like to be paid?
- What are your compensation expectations for this position?
- What are your compensation requirements for this position?
After an offer of employment that includes compensation information has been made, it’s also okay to confirm compensation history as part of the negotiation process.
After an initial offer has been made, a candidate may choose to voluntarily disclose their salary history to negotiate a better offer.
Most former employers won’t reveal compensation history without authorization from the employee, so written authorization from the candidate (including an acknowledgment by the candidate that an offer of compensation has been made and that the disclosure is voluntary) is important to secure.
And remember “Don’t Ask” isn’t limited to compensation issues.
There are a lot of other questions that are prohibited that can, presumably, lead to bias in hiring. Here are a few examples.
Affiliations: While you can’t ask the candidate about clubs, social organizations, or union membership, you can ask about relevant professional associations.
Age: You can’t ask a candidate's age other than, "if hired," can a candidate produce proof that he or she is 18 years of age.
Alcohol or Drug Use: The only allowable question relating to current or past drug or alcohol use is, "Do you currently use illegal drugs?"
Criminal Record: You can’t ask if a candidate has been arrested but you can ask if she or he has ever been convicted of a crime.
Culture/Natural Origin: You may ask if the individual can, "upon hire," provide proof of a legal right to work in the United States.
Disability: You can ask if candidates can perform essential job functions, with or without “reasonable accommodation”.
Marital/Family Status: Questions about marital status and family issues are not allowed.
Race/Color: No race-related questions are legal.
Religion/Creed: Again, another area that you can’t ask about.
Sex/Sexual Orientation/Gender Identity: It’s imperative to avoid any these topics entirely.
So, my point is that asking the right questions, and not asking the wrong ones, is pretty complicated! That’s why you should work with the experts at Contact!