Employment law doesn’t just dictate the ways you can and cannot discriminate in your business hiring practices—it also gives some guidelines about the kinds of questions you can and cannot ask job applicants. Therefore, anyone responsible for hiring for your business should familiarize themselves with some of these basic tenets of employment law to ensure they do not land their business (or themselves) in legal trouble.
There are three general categories of questions hiring managers and HR professionals should avoid in interviews: criminal history, credit history and salary history.
Here’s a quick overview of why these questions are prohibited.
What’s your criminal history?
Most of the time, employers are prohibited from asking potential employees about their criminal history in an interview and/or on a job application. Employers are allowed to perform criminal background checks, but there are also special rules that apply in these scenarios. Applicants must be informed in writing that they will be subjected to a criminal background check, and that the findings of that check could influence the decision making process.
Employers should also keep in mind that in some cases there are regulations indicating which types of criminal records can be disqualifying.
What’s your credit history?
Bans on asking questions about credit history vary from jurisdiction to jurisdiction, but they saw a significant boost in popularity in the time immediately following the recession. Sometimes there is a total ban on asking about credit history, in other cases it is allowed to ask about credit history after giving an applicant a conditional offer letter.
These bans were implemented because credit history trouble is typically associated with people who do not come from affluent backgrounds, which meant performing credit history checks as part of a job application process could be classified as discrimination against low-income individuals.
There might be some cases, however, in which it is permissible to ask about credit history. The most common example is in certain types of finance positions, in which an applicant’s credit history could actually be material to his or her job responsibilities.
What’s your salary history?
There has been a growing movement to ban employers from asking about applicants’ salary histories. The idea behind these bans is that employers should be capable of determining a reasonable level of compensation for a position based on that position’s responsibilities and the candidate’s qualifications without having to factor in the person’s previous salaries.
Companies that set a salary based on the individual’s salary history are positioning themselves to continue a cycle of inequitable compensation, which is unfair to the applicant.
While some locations around the United States have already implemented these bans, and even more are considering them, the U.S. Virgin Islands has yet to implement same. The tide however, continues to move in the direction of banning those types of questions entirely, it is best for employers to get into the habit of not asking them.
For more information about hiring best practices, contact an experienced labor attorney in the U.S. Virgin Islands.
Ravinder S. Nagi is Assistant Managing Attorney and Chair of the Labor and Employment Practice Group at BoltNagi PC, a full service business law firm that serves the U.S. Virgin Islands.