Learn how salary history ban laws can affect the interviewing and hiring process. Check your state and local laws.
Salary History Ban: Everything Employers Need To Know in 2022
Charlette has over 10 years of experience in accounting and finance and 2 years of partnering with HR leaders on freelance projects. She uses this extensive experience to answer your questions about payroll.
Jennifer Hartman is an HR Specialist and staff writer for Fit Small Business, with over 15 years of experience in accounting, payroll, and human resources.
This article is part of a larger series on Hiring.
Salary history refers to an employee’s past earnings and can include details about other benefits received such as bonuses and paid time off. Sometimes, new employers ask for a job applicant’s salary history so they can consider it when making a job offer.
Many states and localities, however, have enforced salary history bans to help eliminate pay discrimination. These laws (there are currently no federal laws in this area) prohibit employers from asking job candidates information about their salary history. To comply, some companies are updating job applications and company practices, as each violation can result in a penalty from $100 to over $250,000.
State & Locality Salary History Bans
Currently, 21 statewide and 21 local salary history bans are in place, which may prohibit companies from requesting salary history altogether, prohibit salary history inquiries before providing an offer, or prohibit the use of salary history to set pay. Laws vary by location. For instance, although Illinois employers are banned from requesting a job applicant’s salary history, they can ask the candidates to describe their ideal salary range for the open position. New York State, on the other hand, bans employers from requesting salary history and asking questions about expected salary ranges.
Did You Know?
The idea of prohibiting salary history started as a way to resolve historical pay gaps that have impacted employees due to their gender, race, and background. In 2016, Massachusetts became the first state to prohibit a potential employer from inquiring about salary history before making a job offer. Since then, several other states have followed suit.
Numerous cities and counties, in addition to US territory Puerto Rico, have also passed legislation restricting certain types of employers from requesting salary history information from job candidates. These localities are in states both with and without statewide bans.
Salary history bans can apply to all employers (public and private), just public employers, or only employers of a certain size (15 or more employees, for example). Additionally, two states—Michigan and Wisconsin—have prohibited bans on salary history altogether. Local governments in these states aren’t allowed to regulate the salary information that employers request from job applicants during the hiring process.
Explore the tables below for more information on salary history bans in your area.
States
Statewide Ban | Compliance Rules |
|---|---|
A company may not refuse to interview, hire, or employ an applicant who does not provide pay history. | |
All private and public employers are prohibited from requesting salary history. | |
Employers may not ask about pay history or rely on it to determine salary. | |
Employers may not ask about salary history unless voluntarily disclosed. | |
Employers are prohibited from asking about salary history. They may require it after an offer is made. | |
Government agencies are prohibited from asking about salary history unless brought up after an offer is made. | |
Employers may not ask about salary history or rely on the information unless provided. | |
Employers may not ask about salary history but may ask about salary expectations. | |
Employers may not inquire about salary history until after an offer has been made. | |
Employers may not ask but can confirm salary history after a compensation offer has been made. Employers must also provide an applicant with the wage range of a position if requested. | |
Employers may not request salary history before an offer is made. | |
Employers may not inquire about pay history, nor refuse to hire, interview, promote, or employ applicants who do not provide pay history. Employers can ask applicants about their pay expectations. | |
Employers may not screen applicants based on their salary history and may not require their prior salary to meet a certain minimum or maximum. Employers can confirm salary history once a compensation offer has been made. | |
Employers may not ask about salary history. An exception is to confirm at the time of offer if an employee provides pay history to support a higher salary than being offered. | |
State agencies may not request salary history and may not use provided history to set pay. | |
Employers may not ask about salary history until after a compensation offer has been made and may not use history to set pay. | |
State agencies may not ask about current or former salary history at any point in the hiring process. All posted jobs must show pay scale/range. | |
Employers in this state may not request or rely on salary history when considering an applicant or determining salary. | |
Employers may not request salary history. If provided, employers may confirm only after a job offer has been made. | |
The salary history field has been eliminated from all state job applications. | |
Employers may not request salary history unless an employee voluntarily provides it and only after a job offer has been made. |
Localities
Local Salary History Bans | Employers That Must Comply |
|---|---|
All county employers and employers within the city limits of New York City | |
All city agencies | |
All city agencies | |
Employers with 15 or more employees located within the city, including job placement and referral agencies. State and local governments are excluded, with the exception of the City of Cincinnati. | |
All city and county agencies | |
All city agencies | |
All employers within the city limits that have more than six employees | |
All city agencies | |
All county agencies | |
All city agencies | |
All employers within the city limits | |
Commonwealth-wide | |
All city agencies | |
All employers within the city limits | |
All employers located within the city with 15 or more employees, including referral and employment agencies, as well as the city. |
How To Comply With Pay History Ban Laws
Complying with salary information bans might seem complicated at first, but once you review your hiring process, policies, and procedures, it’ll be much easier. The best thing you can do is remove references to your job candidates’ salary history from the application, interview, and job offer processes. Identify each step in the process that leaves your company vulnerable to non-compliance.
Here are steps you can take to ensure your company doesn’t violate a pay history ban:
- Remove salary information requests from all job applications.
- Remove questions about salary from all job interview scripts.
- Don’t ask job candidates’ current or former employers or co-workers about their pay history during reference checks.
- Retrain your human resources and recruiting team.
- Display labor law posters with salary ban regulations in locations where job interviews are usually conducted and that your human resource team frequents.
- Set up a system to document how hourly wage and salary amounts are determined for new employees.
- Review the details of any salary information bans your business must comply with; verify that you’re allowed to ask for salary expectations instead of assuming.
- Review all print or electronic hiring policies and update them to align with your state’s laws.
- Use a job search site to do salary comparisons before finalizing a job offer; don’t use any salary history information you receive to determine how much to offer a job candidate.
Tips on How To Avoid Salary History in Interviews
To avoid asking questions about salary during a job interview, focus on the candidate’s ability to perform the job. Get creative and ask case-study questions that will test their thought process on the spot.
It’s also a good idea to inquire about the results your job candidates have had in former jobs. A resume is good at showing an applicant’s previous job titles and duties, but finding out how well they performed may require more digging.
Your goal should be to gather as much evidence as possible to help you determine if the candidates are a good fit for the job. Just because they were once paid $10 an hour for similar work doesn’t mean they shouldn’t be paid the $50,000 a year that their experience is currently worth.
Did you Know?
Your area may have other regulations regarding what cannot be asked during interviews and considered during the recruitment process. Ban the Box is a policy that many states, cities, and counties have adopted to allow job applicants to be judged by their qualifications before any criminal convictions are considered. Employers who operate under this law must remove any questions about conviction history from their job applications. Some employers are also required to delay background checks until later in the hiring process.
Penalties for Violating Bans on Salary History Questions
Penalties for violating the pay history bans, which can reach upward of $250,000, vary depending on state or local laws. Some states don’t have clear penalties as of yet, and others subject violators to civil penalties, back pay, and even reinstatement of job applicants who were dismissed on illegal grounds (salary history).
Here’s how a couple of the laws differ:
- In San Francisco, employers are given a notice and warning for their first violation. They can be charged up to $100 for second violations that occur within 12 months after the first violation, and employers may have to pay up to $500 for any subsequent violations (still within those 12 months).
- Illinois has approved a new statewide ban—previously, Chicago was the only Illinois city that banned salary history questions—and employers have to pay up to $5,000 for each violation. They can be subject to up to $10,000 for “special damages” if the court finds that the employer acted with malicious intent.
Bottom Line
Banning companies from asking potential new hires for salary information forces employers to set wages based on other factors. Work experience and credentials should be considered in addition to the market value of your job candidates’ skill sets to ensure you offer new employees fair pay. Also, be careful to research the specific ban that applies to your business to avoid spending thousands of dollars in penalties.
