There are laws that serve to protect job applicants during the recruiting and hiring process for when something does not go as it should. Although most New York State companies mean well, it is important for a job seeker to have a general understanding of applicable legislation so they can make sure they are protected. This way when an employer “slips” and makes an error, the candidate is aware and can respond appropriately.
It used to be that almost all employment law was written specifically focused on existing employees, but in most situations, the protection has expanded to include applicants. Let’s review some of the most common areas of concern for a job seeker and what options you have if facing any of these situations.
The oldest and broadest are the laws in place to protect people based on a variety of characteristics (including race, national origin, gender, etc.), starting with the 1964 Title VII Civil Rights Act. Over the years, items such as age and disability status have been added to the protection list via different passed legislation.
In most situations, discrimination of this kind is more covert in nature, such as the Hiring Manager choosing to interview or hire one person over another based on something other than job qualifications. On rare occasions, a Hiring Manager will tip off her/his intention by asking or making a comment that can be tied back to your protected class. An example of an invalid question would be asking, “What country were you born in?” Most job applicants realize that discriminating against based on these items is prohibited, although it may be exceedingly difficult (at times) to prove it has occurred.
There are, however, some newer items that have come about over the last several years that you should be aware of. It is especially important to know your rights now, as employers may still be adjusting to these changes.
While New York State has yet to pass a state-wide “ban the box” law, most major state municipalities (including Buffalo, Rochester, and Syracuse) have passed this type of legislation. These laws protect applicants with a criminal history by prohibiting employers from asking about their past record on an employment application. Generally, employers subject to such laws are only permitted to ask about an applicant’s criminal record further on in the hiring process, after a conditional offer of employment has been made. Similarly, a criminal conviction does not automatically disqualify you for a position, because under NY law, covered employers must conduct an individualized assessment before making a conviction driven rejection. These laws have been passed as part of an overall initiative to assist those with criminal records in finding a job and acclimating themselves back into society.
New York State has implemented a law that prohibits employers from asking job applicants about their salary history. The State has passed this legislation as a counter to its belief that some employers will use current salary information to continue gender or race-based gaps in compensation. In other words, if there are lower existing salaries for those who are female or Hispanic, then basing their new hire salary offer on their current compensation will just perpetuate the issue. The idea is that if an employer does not know your current salary, then they will offer what is most fair to the labor market and your qualifications. So, a company is not permitted to ask for an applicant’s salary history either in the application or during the interview.
Most everyone knows there is a minimum wage for hourly non-exempt employees, but did you know that New York State has a salary threshold for exempt staff that is much higher than the federal number? Currently in Western New York, an employee must earn a minimum of $62,353.20/annually to be considered exempt from overtime. A salary offer lower than this should be rejected by a candidate, based on state law.
Perhaps the biggest recent change in New York is that most job postings must now include a compensation range. If an employer has four or more employees, they must include a reasonable (good faith estimate) compensation range for any advertisement for open positions, promotions, and transfer opportunities.
Finally, remember that you are protected against retaliation. An employer is generally prohibited from retaliating against an applicant for their actions related to the items noted above. This includes declining salary history, requesting a compensation range, or requesting a reasonable disability accommodation. Retaliation can take many forms for a candidate, but includes refusing to consider or withdrawing an offer.
We all would like to think that every hiring decision is made fairly based on who is the best candidate for the position. Unfortunately, on rare occasions, that is not the case, so laws need to be in place to protect applicants in those situations. As a savvy job seeker, it is important to know your rights as an applicant!
As always, best of luck in your job search.
The following has been prepared for the general information of WNYJobs readers. It is not meant to provide advice with respect to any specific legal or policy matter and should not be acted upon without verification by the reader.
Joe Stein
WNY Human Resources Professional
Feel free to contact Joe Stein regarding questions or comments at:
Joe Stein
