When it comes to the Ban-the-Box law, job applicants (including unpaid interns and employees) are covered and protected by the Fair Chance Act, which, in addition to prohibiting such criminal history questions and inquiries, imposes substantial obligations and legal implications on employers who may have intentions for taking action based on a person’s criminal record.
To move this discussion forward, let us examine salary history and marijuana testing as important legal issues that employers should be aware of during the screening and recruitment processes.
Seeking Salary History and Carrying out Marijuana Testing during Screening & Recruitment in New York
Similar to prohibitions on enquiring about an applicant’s criminal history, employers are prohibited by New York State and New York City from asking and enquiring, as a condition of employment, about an applicant’s salary history. Thus, as a best practice, employers should:
- Continuously review hiring practices to make sure that inquiries and questions about salary history from other recruiting agencies or prior employers are not part of the screening and recruitment of candidates.
- Train recruiters and hiring personnel in inducing discussions concerning salary history from other recruiting agencies or prior employers.
- Ensure that job application forms do not feature any inquiries and/or questions concerning salary history information from other recruiting agencies or prior employers.
Additionally, New York City employers are prohibited by the New York City Human Rights Law (NYCHRL) from requiring and subjecting, as a condition of employment, candidates to a marijuana or tetrahydrocannabinol (THC) test.
However, pursuant to NYC Administrative Code 8- 107, subd. 31, there are some exceptions. For instance, such submissions are mandatory when the testing is a condition of receiving a federal grant or contract, or when the application being made involves working in certain occupations that involve public safety or health.
In Part XIV of this series and our blog post titled “Screening & Recruitment: Drug Testing of Employees,” we will hammer on drug testing of employees as we continue focusing on employer considerations for “Recruitment and Screening,” which is another key employment issue that significantly affects start-ups and growing businesses and companies in New York.
As usual, stay tuned for more legal guidance, training, and education.
In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.