Compliance Corner: What Changes Must You Make to Comply with Banning Salary History Questions?

To end the cycle of pay discrimination, New York and New Jersey created laws that go into effect in January 2020. There now are 15 states and many localities with some form of prohibition against questions regarding salary history.

Although some laws prohibit employers from using pay history to set compensation, others completely ban pay history questions. Some laws regulate when salary questions may be asked, such as pre- or post-offer, and whether a candidate is internal or external.

Prohibitions on requesting wage history vary by law or ordinance. As an HR professional, keep in mind that this, along with increasing limitations being put on employer inquiries on wage history, means you need to review your applications, interview methods, recruiter guidelines, and reference check protocols to ensure they comply with applicable laws and ordinances.

With the rise of employees working remotely, especially in different states, knowing what you can and cannot ask a job candidate is becoming increasingly complex. To ensure compliance with these bans, one best practice is to approach salary negotiations the same way. For instance, include a salary range in job postings to give an idea of the level of experience needed. During the interview, move the conversation to the candidate’s salary expectations. Then, focus on their skill set and qualifications. That way, you're upfront about what the company believes is the market value of the role. Candidates can disclose salary expectations before moving too far in the recruiting process.

Another way to approach the topic of salary is by providing pay transparency during the hiring process. Providing salary ranges for all jobs minimizes the need to negotiate pay when hiring talent. Having the job description, hiring criteria, salary range, and other information laid out makes it irrelevant what a candidate previously made. If a candidate requests a higher salary, you can explain that a higher position would need to be given and what the criteria for the role would be to get there.

Check with an attorney to determine whether salary history laws affect your company. Avoid potential legal issues and fines for noncompliance.