‘Oh, Say Can You See’ America’s Employee Protections?

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Fireworks at US Capitol

As the United States prepares to commemorate its 242nd anniversary, now is a good time to recognize and appreciate the numerous protections and safeguards America has created for its employees.

It’s easy to take these benefits for granted since they are part of the routine fabric of our daily lives; however the rights afforded to us are significant. So this July 4th—and every day, for that matter—take time to consider the legal protections that cover millions of American workers, some of which are expected to expand in coming months:

Salary History Bans & Pay Equity

Pay Equity legislation ensures employees will not be grilled about how much they are making in every region the law is in effect. Same with Ban the Box. There are variations in application in different regions but the general principal and protection for the candidate is consistent. Sexual harassment is prohibited by Federal law, although individual states are offering sexual harassment training.

Perhaps the most uncomfortable question a job candidate has to answer is “what is your current or most recent salary?” Answer too high and you may be cut from consideration. Answer too low and you may end up unfairly compensated. Thankfully, many U.S. cities, states and territories have passed measures that bar employers from asking job candidates in America about their prior salary.

The reasoning behind this new legislation stems from wage inequality: the median annual pay for a woman who holds a full-time job year-round is significantly less than that paid to a man. The disparity can be even greater for women of color. Research has shown that women start out with a lower salary, and it’s quite likely that they’ll make increasingly less when employers base future salaries on the previous ones. That low salary they began with haunts them throughout their career each time they are asked what their most recent pay package was.

For a more comprehensive look at the laws and a list of all current U.S. jurisdictions applying Pay Equity legislation—many with unique differences—please see HireRight’s Pay Equity e-Book and Overview.

Ban the Box

A growing number of employers are adopting the philosophy that individuals who possess a criminal record deserve a fair chance in the hiring process. And a great many states and cities in the U.S. agree, passing legislation called Ban-the-Box laws that typically delay when private employers can ask candidates about their criminal histories. While state and city laws vary, Ban-the-Box laws generally call for the elimination of the check box on employment applications that ask whether a candidate has ever been convicted of a crime.

As we wrote in a 2016 blog, researchers from Harvard University and the University of Massachusetts Amherst, using the U.S. military—the nation’s largest employer—as a test bed, found that ex-felons were no more likely to be dismissed for misconduct or poor performance than other enlistees. In fact, they were more likely to be promoted to higher ranks.

Employers should note that the Ban-the-Box laws have teeth: Attorney General Maura Healey recently cited 21 employers for violating Massachusetts’ Ban-the-Box law. Seventy Cambridge and Boston businesses with paper application forms were investigated as part of an ongoing effort to ensure employers are in compliance with the state’s 2010 law. Four employers were fined $5,000 each and agreed to come into compliance with the law. San Francisco has also recently amended its ban the box law that increase the penalties for non-compliance and also provides a private right of action for any individual whose rights are violated under the law.

Each year, more than 630,000 individuals are released from prison, more than the population of many cities. As many as 100 million Americans have criminal records. That’s a lot of potential talent. And with Ban-the-Box laws in effect in many parts of America, there’s a better chance that talent may get the chance to shine.

Many of HireRight’s clients have adopted fair chance hiring policies and individually assess any criminal history that may potentially disqualify a candidate for hire. They engage that candidate in a discussion regarding their criminal past and assessing the risk that previous criminal conduct may cause to the organization.

For the latest information on Ban the Box, please refer to HireRight’s tip sheet and list of prevailing laws by jurisdiction.

Paid Family Leave

Paid Family Leave (PFL) provides job-protected paid leave so that working families do not need to choose between caring for loved ones and risking their job and income. The policy provides income from an employer, insurer or the government while the employee is away from work for an extended period of time. PFL was designed to provide employees with time to recover from a serious health issue, take care of a loved one with a serious health condition, bond with a newborn or newly adopted child, or even help relieve family pressure when someone is called up for active military service overseas (depending on state).

PFL is usually only available through larger employers. For this reason a small but growing number of states, including New York, California, New Jersey and Rhode Island have thus far enacted PFL legislation.

Paid Family Leave is different than paid time off. A new mother working at a company that doesn’t offer PFL may take maternity leave based on accrued sick days. The amount of money paid during this leave would be considered paid time off and be taxed as such.

For more information on Paid Family Leave policies, please contact your state’s website (typically the abbreviation of your state’s name followed by.gov, eg, www.ny.gov, www.ca.gov, www.nj.gov, etc.)

Marijuana Laws and Drug Testing Policies

In recent years, laws addressing the use of medical and recreational marijuana have relaxed in many states throughout America. Twenty-nine states, plus the District of Columbia, have passed statutes enacting comprehensive public medical marijuana and cannabis programs.

Such laws perplex employers, particularly those whose offices or facilities span multiple states where the marijuana laws may differ or conflict, particularly with Federal law. As HireRight revealed in our 2018 Employment Screening Benchmark Report, 38% of organizations surveyed do not accommodate the use of medical marijuana at all, 33% don’t have a medical marijuana policy, and only 2% accommodate it in every state whether or not the state mandates.

According to the Society for Human Resource Management (SHRM), the current tight labor market in tandem with the continued relaxation of medical and recreational marijuana laws are causing employers to rethink drug testing practices they’ve had in place for decades.

Sexual Harassment Avoidance

Employers are increasingly looking at ways to address and mitigate cases of sexual harassment and assault in the workplace. From creating cultures that promote openness and transparency to amending policies to specifically address sexual harassment and assault, employees are provided with more protections, if not by the law, then through efforts within the organization.

October 2017 brought with it a sea change in the national dialogue regarding these issues. Serious allegations had been made against film producer Harvey Weinstein. As more and more people came forward, making serious claims of sexual harassment and assault against numerous celebrities in the United States, the many high-stakes sexual harassment cases  made headlines—and ended careers. The #MeToo hashtag campaign, which encourages individuals to share their suppressed stories of sexual misconduct, stimulated an avalanche of allegations well beyond the entertainment industry and extending far beyond the United States.

Time magazine referred to those behind the #MeToo movement as the “Silence Breakers” and named them Time Person of the Year in 2017. Writers called the time a tipping point for societal treatment of sexual misconduct, distinguished from prior sexual misconduct public debates by the public trust put in the celebrity accusers, as opposed to prior cases of publicly unknown accusers.

Such recognition of sexual harassment in the workplace sparked reinvigorated efforts by organizations throughout America to comply with Title VII of the Civil Rights Act of 1964 which defines and prohibits sexual harassment. Key among these is the Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces civil rights laws against workplace discrimination. In a SHRM blog post, attorney Matthew Deffenbach noted that “The impact from what’s happening in Hollywood and in politics will trickle down, and we may see new harassment laws and more training mandates at the state level.”

HireRight has seen increased interest in screening solutions to help address the #MeToo movement, demonstrating many employers’ commitment to protecting employees within their workforce.

Visit our Resource Library for more on Pay Equity, Ban-the-Box and more

Lewis Lustman

Lewis Lustman is a content marketer who enjoys developing materials that engage, inform, challenge, and hopefully entertain my audience. Lewis is a former journalist for Los Angeles Magazine and the Los Angeles Times, and has worked for a number of leading advertising, marketing, technology, and PR firms over the years. Interested in a topic that he hasn't yet tackled? Drop him a line in the comments section!

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.