Recently states and cities have started to pass laws and ordinances that restrict an employer from seeking wage history during the hiring process. The goal of these laws is to close the wage gap. The theory being that if employers do not base compensation on prior wage history of the applicant, they are more likely to provide equal compensation between men and women.
Most legislation that has been passed allows for employers to obtain wage information after an offer of employment that includes compensation. Also note, most passed legislation is not yet effective with most being implemented in 2018. See below for further information.
*The infromation below consist of summaries of laws passed throughout the country.
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Bill AB 168 will become law on January 1, 2018
- An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment.
- An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.
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Nothing in this section shall prohibit an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer.
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If an applicant voluntarily and without prompting discloses salary history information to a prospective employer, nothing in this section shall prohibit that employer from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant.
Ordinance passed July 2017, take effect July 2018
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- All employers within the city limits, including city contractors and subcontractors not in San Francisco city limits, are prohibited from requesting salary history
- Illegal to consider applicant’s salary information in determining offer of employment or salary
- Unless the salary history is publicly available, employers are prohibited from sharing a current or former employee’s salary history without applicant authorization.
- Employers may verify non-salary related information and conduct a background check. If the background check discloses salary, the salary history cannot be considered when determining the salary to be offered.
- From July 2018 to July 2019 the Office of Labor Standards Enforcement (OLSE) will issue warnings and notice to correct. OSLE will impose monetary fines between $100 and $500 per violation after July 1, 2019
- Employers may not Inquire or direct a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except that this subdivision shall not apply to any actions taken by an employer, employment agency or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes. Nothing in this section shall prohibit an employer from inquiring about other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.
Bill 25664 became law June 2017, take effect December 2017
- Illegal for employers to screen applicants based on their compensation histories,
- Employer is prohibited from seeking the salary history from the applicant or any current/former employer
- An employer is permitted to seek and confirm such information after an offer, including compensation, has been negotiated, made, and accepted.
- If applicant voluntary shares salary history, employers are permitted to consider salary history when setting compensation.
- Violations of this law could result in penalties from $1,000 to $5,000 for a first offense, and up to $10,000 for a subsequent offense.
- Employers are prohibited from asking about applicants’ salary histories, and they cannot rely on that information unless volunteered by the applicant.
- Employers may not seek pay history including benefits or other compensation. Employers may, however, discuss applicants’ pay expectations.
Effective 10/01/2020. Employers may not:
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Seek an applicant’s wage history either orally or in writing, or through an employee or agent or an applicant’s current or former employer.
- Rely on an applicant’s wage history in screening or considering the applicant for employment or in determining the applicant’s wage
Applicants may share their salary history voluntarily after the employer makes an offer of employment with proposed compensation level. The employer may:
- Rely on an applicant’s voluntarily provided wage history to support a wage offer higher than the initial wage offered; or
- Seek to confirm an applicant’s voluntarily provided wage history to support a wage offer higher than the initial wage offered.
AN ACT TO ESTABLISH PAY EQUITY signed in 2016 and effective 07/01/2018 restricts employers in MA from seeking the wage or salary history of an applicant
- Effective 09/17/2019
- Employer may not inquire about a prospective employee’s wage history until after a job offer.
- Effective 10/31/2019
- Unlawful for an employer or agent to:
- Inquire about the salary history of an applicant for employment
- screen applicants based on their current or prior wages
- rely on salary history of an applicant in deciding whether to offer employment
- refuse to hire or otherwise disfavor, injure, retaliate against an applicant for not disclosing their salary history.
Effective January 1, 2020
- bars employers from screening job applicants for employment in New Jersey based on salary history including, but not limited to, their prior wages, commission, or benefits
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If an applicant “voluntarily, without employer prompting or coercion,” provides his or her salary history information, the employer may consider and verify it. An applicant’s refusal to volunteer this information, however, may not be considered in any employment decisions.
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Employers in New Jersey may still confirm an applicant’s salary history upon the applicant’s written authorization, after an offer of employment that includes an explanation of the overall compensation package.
Effective January 6, 2020
- Forbid employers from orally or in writing seeking, requesting, or requiring the wage or salary history from an applicant or current employee as a condition to be interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion. Employers also cannot seek wage or salary history from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer.
- Prohibit employers from relying on the wage or salary history of an applicant in determining whether to offer employment to such individual or in determining the wages or salary for such individual.
- Prohibit employers from refusing to interview, hire, promote, otherwise employ, or otherwise retaliate against an applicant or current employee based upon prior wage or salary history, the refusal to provide the same, or because the individual filed a complaint with the department alleging a violation of the law.
1253-A became law May 2017, take effect October 31, 2017
- Illegal for employers to make any salary inquiry of an applicant. This include current and former employment history.
- Illegal for an employer to consider salary history in determining the salary, benefits or other forms of compensation.
- Employers cannot conduct any public information search for an applicant’s salary history.
- Employer can use salary history to determine compensation and verify salary history ONLY if this information was supplied from applicant willingly and without any prompting.
- Albany: barred from inquiries until after job offer is made
- Suffolk: (June 30, 2019) Employers may not ask on application or otherwise about applicant’s wage history including benefits. Employers may not conduct searches on publicly available records and may not rely on salary information when setting pay.
- Westchester County: May not request information about previous wages.
Effective March 2020 (approximate)
- Employers with 15 or more employees within the city may not ask about salary history and may not rely on known histories when setting pay.
Effective June 25, 2020 and effects employers with 15 or more employees.
Employers are prohibited from:
- inquiring about the salary history of an applicant for employment;
- screening applicants based on their current or prior wages or other benefits or compensation, or requiring that salary history satisfy minimum or maximum criteria;
- relying on salary history in deciding whether to extend an offer of employment, or in determining the salary, benefits, or other compensation for an applicant during the hiring process, including the negotiation of an employment contract; and/or
- refusing to hire or otherwise retaliating against an applicant for not disclosing his or her salary history.
Employers must also, upon reasonable request, provide the payscale for a position after a conditional offer of employment.
House Bill 2005 became law in 2017, take effect January 2019
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- Illegal for employers to compensate employees differently based solely on race, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.
- Employers may not ask about current salary or past compensation until an it is made an employment offer with proposed compensation
- With express written consent, employers may seek to confirm the prospective hire’s pay history post-offer
- Employers may not reduce the wages of employees to comply with the law
- Employers that violate the Equal Pay Act may be liable to employees for unpaid wages.
- Prohibits employers conducting business in Philadelphia from inquiring into an applicant’s wage history.
- Illegal for employers to base prospective salary on previous compensation, unless applicant knowingly and willingly shared salary history
- If wage history is discovered during the hiring process, it cannot be used to determine compensation for the prospective employee.
Prohibits:
- (1) asking applicants or their current or former employers about their current salary or salary history; or
- (2) conditioning current or future employment upon an employee’s or applicant’s abstention from inquiring, discussing, requesting or divulging information regarding his or her salary or the salaries of other employees performing comparable jobs.
- Employers may not request applicants’ pay history. If that information is volunteered, employers may only confirm it after a job offer has been made.
- Effective July 28, 2019
- Employers may not request salary history or use it.
- Employers may confirm an applicant’s compensation history under two circumstances:
- if the applicant voluntarily shares it,
- or after making an offer of employment with compensation.
- Employers with 15 or more employees must disclose pay information when applicants or employees request it.