Hiring managers, HR departments, and anyone in charge of recruiting need to be aware of salary history requests, and the bans of those requests that may exist in your areas.
Why would you want to request the salary history for a candidate? For decades, this was a common practice among businesses and hiring managers. By asking a new candidate what their salary has been at their previous jobs, you can take that information into account when negotiating.
For some, the goal of asking for a salary history is to allow you to form an opinion on what to pay a new hire based on their past compensation. You might be able to pay them less than you otherwise would offer if you know even a low offer is higher than their past roles and will be attractive to them. Conversely, you might recognize that a lower offer could be insulting to a good candidate who has a higher salary history.
Unfortunately, salary history has been used to justify a lot of bad practices throughout the employment industry. For example:
- People have used salary history to eliminate candidates with low salaries, under the assumption that if they were truly skilled, they would have been earning more.
- People have used salary history to eliminate candidates with high salaries because they’re “too expensive” even if that candidate might be willing to take the pay cut.
- People use salary histories to exacerbate ongoing gender pay discrimination. It’s illegal to pay people differently based on their gender, but if they have been paid differently in the past and you use salary history to justify it, it becomes legal.
Salary history bans are slowly passing throughout the country. Some are city-level, but most are state-level bans. It’s important to know whether or not you’re allowed to request a salary history as part of the hiring process, so you don’t get your company in trouble with the Department of Labor.
What a Salary History Ban Bans
So when a law exists that prohibits asking about salary history, what exactly does that mean?
Well, the exact specifics of it will vary depending on the wording of the legislation that the state passed, but here’s a general summary.
- You cannot ask about salary history or benefits for current or past jobs.
- You cannot ask for this information before, during, or after the hiring process.
- You cannot ask for this information directly, or indirectly through an application process or screener quiz.
- You cannot ask for the information from agents other than the applicant, such as their coworkers, their former employers, or their family.
- You cannot search for public records or databases for the applicant’s salary history.
Note that this last point does not prohibit researching salary based on role. You can gather information about what a role usually pays, and what that role pays in your geographic location, you just cannot research specific information about what a candidate in that role has earned.
All of this is aimed at making salary negotiations a fair process for all candidates and hiring managers. You’re meant to be making compensation decisions based on your own company’s resources and the skills of the candidate, not on what you can get away with.
Where Do Salary History Bans Exist?
There are quite a few states that ban requesting salary history, so we’re going to run down the list and note anything out of the ordinary for any given state. This information should be accurate as of the time of this post’s publication, but if you’re reading this in 2021 or beyond, you may want to double-check (and let us know in the comments so we can update).
Alabama – Effective as of September 2019. Alabama does not ban requesting salary history, but they ban making decisions based on that information, or on refusing to provide that information.
California – Effective as of January 2018. California bans requesting salary history. If the applicant discloses their salary history on their own, that information cannot be used to make a hiring decision. Moreover, California requires that employers give candidates pay scale information if they request it.
California – San Francisco – San Francisco has its own law, effective as of July 2018. It bans employers from asking for salary history and from using past salary information to determine compensation for a candidate. Additionally, employers are banned from disclosing their current and former employees’ salary information without their consent.
Connecticut – Effective as of January 2019. This ban prohibits employers, as well as LLCs, partnerships, voluntary associations, and other organizations, from asking about salary history. Salary history may still be voluntarily disclosed, and the law does not prohibit making use of that information when it is freely given.
Delaware – Effective as of December 2017. All employers, and agents of employers, are prohibited from screening candidates based on salary history. The ban also prohibits asking about salary history. However, employers may ask for a salary history to confirm information after an offer is already extended to the candidate.
District of Columbia – The D.C. area has its own laws, in this case explicitly for the government agencies there. Effective since November 2017, D.C. agencies are prohibited from requesting salary history from candidates. Candidates are allowed to bring it up themselves after an offer is extended, however.
Georgia – Atlanta – The only applicable law in Georgia is a city law for Atlanta. Effective as of February 2019, this law affects city agencies, but not private employers. It prohibits city agencies from asking for salary history in screenings, verbal interviews, or applications.
Hawaii – Effective as of January 2019. This broad ban on salary history prohibits employers from asking about the topic. Employers are allowed to use the information if the candidate volunteers it, though.
Illinois v.1 – The state of Illinois has three different bans in effect. The first, effective as of January 2019, prohibits state agencies from asking about salary history. It’s unclear whether or not this a law, however, as it was only an announcement made by the governor, not legislation passed by the state government.
Illinois v.2 – The second of the Illinois bans is an actual ban affecting all employers in the state, effective as of September 2019. Employers are not allowed to ask for salary history or benefits information. Employers are allowed to ask about salary exceptions from the candidate, however.
Illinois – Chicago – The third ban in Illinois is the oldest, effective as of April 2018, and it’s a ban in the City of Chicago. It prohibits city agencies and departments from asking for salary history.
Kentucky – Louisville – The city of Louisville has the only salary history ban in the state of Kentucky. The ban has been in effect since May 2018. It prohibits the city government and city agencies from asking for salary history but does not ban private employers from asking.
Louisiana – New Orleans – New Orleans has two bans in effect. The first, in effect since January 2017, prohibits city departments from asking for salary history. The second, in effect since October 2019, prohibits the city from asking for pay history, screening based on compensation or benefits, relying on pay history to determine wages, or using salary history to determine an offer. Applicants are allowed to offer salary history after an offer is made, in order to negotiate a higher salary.
Maine – The state of Maine has a ban in effect since September 2019. This ban affects all employers. Employers are banned from seeking salary history information until after a job offer has been extended and negotiated.
Maryland – Montgomery County – This ban applies solely to the County government and has been in effect since August of 2019. Specifically, the county is banned from seeking or using salary history. It also bans using salary history information or the refusal to provide that information as part of determining a candidate’s eligibility. The county is, however, allowed to use voluntarily disclosed information, but only to offer a higher wage than initially offered, and only if this does not create a gender pay gap.
Massachusetts – Effective as of July 2018. All employers, including state and city agencies, are prohibited from asking for salary history information. If information is voluntarily provided, the employer can verify that information, but only if an offer has been extended. Previous salary information cannot be used as a defense to a pay discrimination claim if known.
Mississippi – Jackson – Effective as of June 2019, Jackson employers may not ask for salary history information.
Missouri – Kansas City – The city of Kansas City has had a ban in place since July of 2018 which prohibits city agencies from asking for pay history until after a candidate has been hired at an agreed-upon salary. Additionally, since October of 2019, all employers with six or more employees are prohibited from asking for salary history, or using that information to determine whether or not to extend an offer. Employers may, however, ask for the candidate’s expectations of salary and benefits. The ban likewise does not apply to voluntarily offered information.
Missouri – St. Louis – The ban in St. Louis is in effect as of March 2020. It prohibits city agencies and departments from requesting salary history information. It also bans retaliation against applicants who refuse to disclose their salary history.
New Jersey – State-wide bans in New Jersey have been in effect since February 2018 and January 2020. The older ban prohibits state entities from asking for salary history information or investigating it themselves. The more recent ban applies to all employers in the state. It prohibits screening salary history, using past compensation as minimum or maximum application requirements, or otherwise obtaining that information. If a candidate volunteers the information, the employer may verify it and use it to determine compensation. The employer may also request the information after an offer has been made.
New York – The state of New York has several bans in effect. The first has been in effect since January 2017 and prohibits a selection of corporations, public authorities, and state agencies from asking about or using salary history information until after an offer is made. The second, effective as of January 2020, prohibits all employers from seeking salary history information. They may confirm such information after an offer is made.
New York – New York City – The NYC ban has been in place since October 2017. It applies to all employers and their agents and bans requesting salary history information.
New York – County Bans – Several counties have bans in place as well. Albany county prohibits salary history requests since December 2017. Suffolk County bans it since June 2019. Westchester County bans it since July 2018.
North Carolina – Effective since April 2019, North Carolina prohibits state agencies from requesting salary history information.
Oregon – Effective since October 2017, Oregon businesses employing more than one employee are prohibited from asking for salary history information until after an offer is made.
Pennsylvania – The state of Pennsylvania has a prohibition in place since September 2018 that bans state agencies from asking for salary history, and requires that job postings disclose pay scale and pay ranges.
Pennsylvania – Pittsburgh – The city of Pittsburgh has prohibited the city agencies from asking for salary information since January 2017.
South Carolina – Columbia – The city of Columbia has prohibited the city’s agencies from asking for or using salary history as part of the employment process since August 2019.
South Carolina – Richland County – This county prohibition has been in effect since May 2019 and bans asking for salary history in applications, screenings, or interviews.
Utah – Salt Lake City – This ban has been in effect since March 2018 and prohibits the Salt Lake City Corporation from asking for salary history.
Vermont – In effect since July 2018, all employers in the state are prohibited from asking for salary history information.
Virginia – In effect since July 2019, all state agencies are changing to a new application that does not ask for salary history.
Washington – The state of Washington has prohibited all employers from asking for salary history since July 2019. However, if the information is offered, the employer may confirm it. Additionally, for employers with over 15 employees, upon extending an offer to a candidate, the employer must provide the minimum salary information for the position to the candidate.
The following set of states do not, as of this writing, have laws banning requesting salary information in effect. However, the applicable laws have been passed, the bans just have not yet taken effect.
Colorado – The Colorado law does not go into effect until January 2021. This ban prohibits employers from asking about salary history, or from using salary history to make hiring or pay decisions. It also prohibits employers from discriminating against candidates who do not disclose their pay history.
Ohio – Cincinnati – The city of Cincinnati has a law that will take effect near the end of March or April 2020. It prohibits employers with 15 or more employees within the city, except for the government, from asking for salary history information.
Ohio – Toledo – Another Ohio city, Toledo has the same 15+ employee ban as Cincinnati, only it won’t take effect until the end of June 2020.
Pennsylvania – Philadelphia – Philadelphia’s upcoming ban does not yet have an effective date. Legal challenges to the ban have kept it from taking effect until a court ruling in February of 2020.
Bans on “Bans”
In a reversal of all of the above, a few states have salary history ban bans. What this means is that employers are not just allowed to request salary history and use it as they see fit, but city governments cannot ban the practice within their jurisdictions in contradiction to the state laws.
Michigan – The state of Michigan prohibits city or county governments from instituting salary history bans. Specifically, local governments may not regulate what information employers can ask for or exclude as part of the application and interview process. However, state departments may not ask for salary history until after an offer is extended. This includes asking prior employers or checking public records for that information.
Wisconsin – Like Michigan, the state of Wisconsin has prohibited local governments from instituting bans on employers seeking salary history.
That’s all for now. Stay tuned; as you can see from the dates, these laws are being implemented only in the last few years, so expect more to hit the books in the next few years as well.
What are your thoughts on these new laws? Does this affect you in any way? Let us know in the comments below!
Andrew Greenberg’s roots in recruiting date back to 1996. He has experience both on the agency-side and corporate-side of the staffing business, with a focus in the financial services space at companies like Bloomberg and UBS. He also has core experience with information technology staffing, and has worked for major software companies such as SAP Business Objects and IBM/Informix Software. To get in touch with Andrew, you can reach him by email or by phone at (800) 797-6160.