Asked and Answered . . .


Kathleen Bogas on business vs worker issue

By Steven Thorpe
Legal News

A bill that would bar municipalities from regulating what Michigan employers can or cannot ask during job interviews is awaiting Gov. Rick Snyder’s signature. The legislation is seen by some as a pre-emptive strike against the sort of local rules implemented or considered in other cities that ban employers from asking a prospective hire about how much he or she earned in prior jobs. Kathleen Bogas is a trial attorney who has specialized in employment, civil rights and personal injury law for more than three decades. She has been president of the National Employment Lawyers Association also president of the Michigan Trial Lawyers Association.

Thorpe: Can you give us some background on this issue? 

This is a Republican sponsored bill which bars municipalities from regulating what Michigan employers can or cannot ask during job interviews. It is interesting that this bill was introduced, let alone passed, since there are no municipalities in Michigan considering limiting or expanding what employers may ask although some employee progressive cities, i.e., San Francisco, New York City, Philadelphia, have passed ordinances barring certain inquiries, such as salary history and criminal records. This was done to head off any future efforts to restrict the interview process.

Thorpe: Business groups including the Michigan Chamber of Commerce, Michigan Restaurant Association and Michigan Retailers Association came out in favor of the bill. Is this issue strictly business vs. worker, or are there other subtleties involved?

This is strictly a business versus worker issue. Employers want to ask the salary history of an applicant so that they can keep the salary offered as low as possible. Historically, women and minorities make substantially less in the workplace than males. Therefore, by mandating that an applicant provide salary history information the salaries offered to women and minorities will be lower and cause the wage gap to continue to grow. We have federal and state legislation that prohibits discrimination, including wage rate, based on gender, race, etc.

Thorpe: Democrats have billed the effort as an attack on local control. Are there many local regulations on employment practices in the state? 

Yes. For example, some communities have ordinances which prohibit discrimination specifically for sexual orientation. Our State law does not specifically provide for that protection.

Thorpe: Advocates say that such ordinances can help close the wage gap between men and women. Agree? 

There is no reason to believe that the wage gap will close between men and women when an applicant is required to disclose their salary history.  Generally, men make more than women.  Therefore, there will be, for example, two candidates:  one male with a higher wage salary and one a female with a lower wage salary.  Logic tells us that even if the woman is equally or greater qualified for the position sought, the woman will be offered a lower wage salary because of her salary history.  There is no circumstance under which such a situation will help close the wage gap.  It will preserve it.

Thorpe: Detroit Democrat Rep. Fred Durhal III said the legislation could also hamper efforts to help people with criminal records find employment. How does this bill affect that issue? 

By permitting an employer to make a blanket inquiry into criminal background and records, people of color or economically disadvantaged will have a more difficult time finding a job. Such information disclosed in the interview process may be an automatic rejection from further consideration for the job. The legislature and employers should be careful in that this provision may be contrary to federal law. The EEOC is actively pursuing cases in federal courts where an employer has made such non-relevant inquiry based on a discrimination theory. It is possible that an employer by making such inquiry will be violating federal law.

Thorpe: Business groups supporting the legislation also say it is consistent with existing pre-emption laws in Michigan designed to create one set of rules for all businesses to comply with across the state. How strong is that argument? 

There is no one set of rules for all businesses to comply with across the State. Nor is there one set of rules for all business to comply with across the United States. Each local governmental unit should decide what serves the best interests of their citizens, not a one size fits all approach.