New Laws Ban Employers from Asking Applicants Their Prior Salary

It may be illegal now in your City.

Employers will no longer be able to ask you the “What was your previous salary?”

Many states and cities are following the lead of the State of Massachusetts and will implement a law that bands the salary history question during the interview process.

California became the latest state to make it illegal for employers to ask prospective employees for their salary history.  AB168, signed by Gov. Jerry Brown, applies to all public- and private-sector California employers of any size.

States and municipalities prohibiting salary history questions

Significantly, other states and municipalities have enacted similar laws prohibiting employer inquiries into job applicants’ salary histories:

  • Delaware (will become effective December 14, 2017)
  • Massachusetts (will become effective July 1, 2018)
  • Oregon (became effective October 6, 2017)
  • New Orleans (became effective January 25, 2017)
  • New York City (will become effective October 31, 2017)
  • San Francisco (will become effective July 1, 2018)

Philadelphia also enacted a law prohibiting employer inquiries into job applicants’ salary histories, but its planned May 23, 2017, effective date has been stayed due to pending legislation challenging the law.

Steps employers should take

Considering these laws, which may now or will soon be in effect, employers with operations in states and municipalities that have enacted a ban on salary history inquiries should review and revise their employment applications to remove any questions that may ask an applicant to provide his or her previous or current salary or benefits.  These employers should also train their human resources and any other team personnel that may interview to ensure that they will not ask questions about an applicant’s salary history during the application and interview process.

Employers that do not currently operate in states or municipalities affected by these laws should nonetheless be cognizant of any similar legal developments or proposals in the states and municipalities where they are located.

Exceptions

Employers should take note of several significant exceptions and caveats.

  • First, if the applicant makes an unprompted and willing disclosure of his or her salary history to the prospective employer, an employer is permitted to consider salary history in determining a prospective employee’s salary, benefits, and other compensation and to verify a job applicant’s salary history.
  • Second, an employer, without inquiring about salary history, also is permitted to discuss salary, benefits and other compensation expectations with the applicant, as well as any unvested equity or deferred compensation the applicant would forfeit or have canceled by resigning his or her current employment. Should an employer’s attempt to verify an applicant’s non-salary-related information or conduct a background check result in disclosure of the applicant’s salary history, the employer is prohibited from relying on the salary information during the hiring process and contract negotiation stages when setting the salary, benefits, or other compensation of the applicant.

Silicon Valley employers can’t ask your salary history, under a new law

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