Articles

Employment Law Update: Salary History Ban

The New “Don’t Ask, Don’t Tell”

Date: January 17, 2024
Employment laws seem to be enacted in waves. One year its laws regulating how employers can and cannot react to or control an employee’s use of social media. Then, there is a wave of laws mandating paid sick leave. Of course, there is the evolving wave of laws about facial recognition and data privacy. 

A current and active wave are bills prohibiting employers from asking applicants about past wage history. These bills, and the resultant statutes, claim to promote pay equity, transparency, and address wage disparities. These statutes postulate that employers, if aware that women or minority individuals were under-paid in the past, will perpetuate that history of underpayment.

Among the states with such laws, Maryland, Delaware, and New York currently prohibit employers from asking job applicants about their salary history. Just last week, the District of Columbia enacted a law (Wage Transparency Omnibus Amendment Act) requiring any business advertising jobs in D.C. to include a pay range and prohibiting asking a job applicant about salary history. The intent behind these laws is to break the cycle of pay discrimination and foster a fair and transparent hiring process.

Critics challenge there is no substantial proof that wage information is used for discriminatory purposes and that past wage history may reveal valuable information regarding past performance and why applicants have moved between jobs. Those opposing the ban on salary history information argue the laws erode an employer’s ability to set wages by market supply and demand factors.  

Just last year, Hawaii and Illinois enacted laws requiring salary information in job ads and several other states have similar legislation pending. Certainly, this wave will continue into 2024 as an active priority of the anti-discrimination agenda.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.