Columbia, SC – Ban the Box and Wage History Ban

October 25th, 2019 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance

On August 6, 2019 the city of Columbia, SC enacted Ordinance No. 2019-022 (“the Ordinance“) to prohibit the City from inquiring about applicants’ criminal histories prior to a conditional offer of employment and identifies requirements about when and how background checks can be conducted. Furthermore, the Ordinance forbids inquiries into applicants’ wage histories. Effective upon enactment, the Ordinance adds Columbia to the rapidly growing lists of jurisdictions who have “banned the box” and prohibited wage or salary history requests.

Note: there has been confusion regarding the applicability of this law to private employers within the City of Columbia. However, the City Attorney has confirmed that at this time, the Ordinance only applies to the City itself, and stated that it’s vendors and contractors are encouraged to follow similar practices. The Ordinance is not applicable to private employers at this time, unless otherwise amended.

In addition to banning the box, the Ordinance requires that a background check may be conducted on an applicant who has received a conditional offer, only after the employer has determined that it is warranted by the specifics of the position sought. Positions for which this determination have been made must include the following disclaimer on all relevant postings and announcements:

“This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify a candidate.”

When a background check is conducted, employers may only consider an applicant’s conviction history, and may not access arrest records, sealed, dismissed, or expunged convictions, infractions, and misdemeanor convictions for which no jail sentence could be imposed. If convictions are found on an applicant’s report, the Ordinance prohibits relying solely on the existence of a conviction (unless otherwise required by law) to disqualify a candidate and requires the employer to complete an individualized assessment of the facts surrounding the conviction and its relation to the position to determine their fitness for the job sought. If the employer chooses to initiate adverse action, they must provide an applicant with the assessment as well as examples of rehabilitation or mitigation which the applicant can provide to contend their fitness for the position. The employer must then allow 10 business days for the applicant to dispute or provide rehabilitative or mitigating evidence before submitting the final adverse action notice.

The Ordinance further institutes a wage history ban, and states that wage and salary histories may not be inquired about as a condition for employment or consideration. Prior wages from previous or current employers also may not be relied upon to determine the salary of the position sought, unless the applicant or employee willingly and knowingly submits them.

Employers are required to retain all application forms, records of employment, communications with applicants, and other pertinent information for a minimum of three (03) years.

The full text of Ordinance No. 2019-022 can be found here.

For regular and other important legislative updates visit our compliance updates section.

The information contained herein is for informational purposes only. Please consult with your legal counsel on the impact of this new law. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.