The Question of Salary History
2 min read
I am writing this blog as a result of multiple inquiries from my client hiring authorities regarding recent and pending legislation related to asking about a candidate’s salary history during an interview in the courts of Virginia, Maryland, and District of Columbia.
I do not give out legal advice, but here is what I know:
It is apparently now against Virginia, Maryland, District of Columbia law for a hiring authority to ask a candidate about their salary history.
Here is the link to the Virginia Senate Bill NO. 447 via the Virginia Legislative Information System updated as of 9 February 2022. I don’t believe it has been tested in actual court yet.
https://lis.virginia.gov/cgi-bin/legp604.exe?221+ful+SB447E+hil#:~:text=That%20the%20Code%20of%20Virginia,prospective%20employees%20prohibited%3B%20civil%20penalty Momentum for salary history bans started with a federal law called the Paycheck Fairness Act. That strengthens provisions in the Equal Pay Act of 1963.
Here are the states with state-wide salary history bans: Alabama, California, Colorado, Connecticut, Delaware, WDC, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, North Carolina, Oregon, Pennsylvania (state agencies only), Vermont, Virginia, and Washington. Puerto Rico continues to be the only territory on the list.
Most of the cities that have been added to the list focus only on salary history bans for city government hiring. Joining New York City, Albany and Philadelphia are San Francisco, Atlanta, Chicago, Louisville, New Orleans, Montgomery County, MD, Jackson, Kansas City, St. Louis, Westchester County, NY, Suffolk County, NY, Cincinnati, Toledo, Pittsburgh, Columbia, SC, Richland County, SC and Salt Lake City.
Some of the cities go to the trouble of specifically mentioning employment agencies and recruiters as being banned from asking salary history as well as direct-hire employers.
Just to be safe, my advice to my client hiring authorities:
1. Remove questions about salary history from your applications.
2. Retrain all employees involved in the hiring process on how to discuss salary, if at all.
3. Advertise and discuss paygrade open positions realistically.
4. If you have multiple office locations, address regional salary differences such as NOVA versus Tidewater regions or WDC versus Annapolis.
5. Questions on compensation should focus on what compensation the candidate is expecting, not what they are currently making. And sell them on your purpose, mission, and other qualitative factors NOT salary.
My advice to candidates has been:
1. You can voluntarily disclose your salary history.
2. Voluntary disclosure must be made without pressure of any kind from the employer.
3. Decide whether providing salary history may help your application or hurt it.
4. Ask for the position’s pay range, employee benefits, growth expectations, bonus structures, commissions, etc., before you voluntarily provide your salary history.
5. If you make more than the client’s compensation range, decide whether you should not apply or if the opportunity might be worth adjusting your salary expectations given other qualitative factors.
6. There is a federal legislative movement regarding this issue and, if passed, bans employers from asking about a job candidate’s pay history during the interview process and this would cover EVERY state and municipality.
State legislation seems to be moving quickly, so I would suggest you consult your legal counsel to see exactly what the right and left limits are when interviewing candidates.
Rob
