From Ban The Box Laws To Marijuana Measures A Midyear Compliance Update

For lawmakers, the first half of 2020 has brought a dynamic shift from the typical legislative agenda. Measures frequently debated by lawmakers were tabled while bills aimed at addressing the Covid-19 pandemic rightfully took precedent. Nonetheless, despite a pivot in priorities and a truncated legislative agenda, many laws affecting employers, particularly those aimed at promoting job seekers’ and employees’ rights, still managed to cross the finish line.

Ban the box legislation, pay equity measures, and laws protecting marijuana users continued to progress in the last six months.  While most employers have been focused on staying afloat amid the pandemic, it’s important not to lose sight of recent laws and litigation that affect how employers evaluate job candidates and manage their workforces. 

Ban the Box Laws

Ban the box laws delay the timing in which an employer can ask candidates about their criminal history. While city and state laws differ, at minimum, ban the box measures prohibit the checkbox on an initial employment application that asks if a candidate has ever been convicted of a crime. Ban the box laws do not prohibit criminal background checks, but instead, they may affect the timing, scope, of adjudication of a candidate’s criminal history.

At least fifteen states and twenty-three cities and counties have passed ban the box laws aimed at private employers that intend to level the playing field to give ex-offenders a fair chance at hiring. Four new laws were adopted or became active over the first half of the year.

As of February 29^th, employers in Maryland with fifteen or more employees are prohibited from inquiring into a candidate’s criminal history until after an employer has conducted an in-person interview.  Notably, Maryland’s new law does not preempt or supersede ban the box laws previously passed in the state. Employers in Baltimore, Montgomery County, or Prince George’s County still need to adhere to the more restrictive requirements of those jurisdictions’ laws, including providing a candidate with an assessment of their criminal conduct as applicable. 

Organizations that employ fifteen or more workers within Waterloo, Iowa are subject to a new ban the box law. Affected employers are prohibited from making an adverse hiring decision based on arrests or pending charges, records that have been expunged, or from marking an adverse hiring decision based on a candidate’s criminal record without a “legitimate business reason.” Waterloo’s law defines legitimate business reasons as situations where the criminal conduct may affect the candidate’s ability to perform their job, those that would cause an unreasonable risk of harm to the business or the public, or for positions working with vulnerable populations. Employers conducting criminal background checks for candidates who will work in Waterloo will need to assess that candidate’s criminal history before potentially withdrawing the candidate’s offer.

Other local communities passing ban the box laws include measures in Suffolk County, New York, and St. Louis, Missouri. Suffolk County’s ban the box ordinance becomes effective August 25th, 2020. It prohibits an employer in the county with 15 or more employees from asking questions about a candidate’s criminal convictions during any aspect of the application process. St. Louis’s new ban the box measure also prohibits employers from making a hiring or promotion decision based on an individual’s criminal history effective on January 1st, 2021.

Pay Equity and Salary History Bans

Despite more than fifty years of effort to bridge the gap in pay between men and women, women’s paychecks are still, on average, 15% smaller than men’s. Pay equity laws strive to permanently close the gap, limiting when and whether employers can ask about a job candidate’s past earnings. They seek to prevent employers from basing compensation on previous earnings, a practice that perpetuates the pay gap historically experienced by women and minorities. 

The first half of 2020 brought new or expanded pay equity measures in New York, Maryland, Toledo, Ohio, and Philadelphia, Pennsylvania. 

New York is among the first states in the U.S. to pass a pay equity law and has maintained a salary history ban since 2017. Recent amendments to that law clarify that the statewide salary history ban applies to all jobs within the state, even if the employer does not maintain a workplace in the state. The law covers all current employees and candidates for hire. Interestingly, the salary history ban does not apply to independent contractors or freelancers engaged directly by an organization outside of an employment agency. However, employers in New York City must comply with both the city and state laws as independent contractors and freelancers are afforded anti-discrimination protections under a recent amendment to the New York City Human Rights Law.  New York’s amended salary history ban became effective on January 6th, 2020.

Maryland has also passed recent amendments to its pay equity law. As of October 1st, 2020, employers will be required upon request to provide the wage range for the position to which the candidate applied.   Employers are also prohibited from retaliating against applicants who request a wage range, or from inquiring into or relying upon a candidate’s compensation history to set future compensation.        

In Toledo, Ohio employers are prohibited from inquiring into salary history when screening candidates, making job offers or hiring decisions. As with all other salary history bans, employers are permitted to present a pay scale for a position and to discuss salary expectations with candidates. Toledo’s law became effective on June 26th, 2020.

Philadelphia, Pennsylvania, has had a salary history ban on the books since 2017. However, almost immediately after it was passed, a legal challenge was raised, asserting that the ban amounted to an unconstitutional limitation on free speech. After three years of legal wrangling, the United States Court of Appeal for the Third Circuit issued a decision upholding the Philadelphia Wage Equity Ordinance, which means that as of June 5th, 2020, employers must now comply with the city’s salary history ban.   

Marijuana Reform and Accommodation

Laws expanding marijuana users’ rights continue to be among the most novel and evolving topics affecting employers. Thirty-five states, including Washington DC, have legalized medical marijuana, with eleven states legalizing recreational marijuana. A notable trend towards decriminalizing, but in many cases not fully legalizing, cannabis has begun to take hold in 2020.  

Utah’s medical marijuana law passed in 2018 became effective in March of this year. A recent amendment to the law clarifies that private employers are not required to accommodate the use of medical marijuana, permits drug screening for marijuana, and allows employers to implement zero-tolerance policies against marijuana use at the workplace or while on the job. Like many other recently passed marijuana measures, Utah’s law provides for the expungement of certain marijuana-related convictions.

As of the start of the year with limited exceptions, it became unlawful for Nevada employers to reject a candidate who tests positive for marijuana on a pre-employment drug test.  Nevada’s new law is unique in that it provides candidates with an opportunity to rebut the results of an initial drug test within the first 30 days of employment by taking a second drug test. Nevada will also decriminalize marijuana as of July 1st, 2020, and intends to pardon individuals convicted of certain minor marijuana offenses automatically.

Virginia has decriminalized simple marijuana possession as of July 1st, 2020. While the state has chosen not to legalize marijuana, it has decriminalized simple marijuana possession and prohibits employers from requiring candidates to disclose past marijuana possession criminal charges.

And perhaps the most novel of recent marijuana laws is New York City’s ban on pre-employment testing for marijuana, which became effective May 10th, 2020. Unless a candidate will be employed in a safety-sensitive position or is required by law or regulation to undergo pre-employment testing for marijuana, employers in the city should remove marijuana testing from their pre-employment drug testing panels.

The Next Six Months

Several ban the box, pay equity, and marijuana bills are currently being debated in a handful of statehouses and city council chambers across the county. While many lawmakers continue to focus on Covid-19 related measures, it’s uncertain how many of these bills will come to fruition this legislative season. Nonetheless, employers should recognize that these issues will fall to the wayside despite the pandemic, but instead will remain top-of-mind for legislators in the months and years to come.