Nevada and Rhode Island will soon join the growing list of state and local governments prohibiting employers from requesting salary history from applicants, the most common form of pay equity legislation. As employers transition to remote workforces and attract applicants from across the country, recruiters should be mindful that requesting or relying upon compensation history from applicants may be off-limits or only available under a narrow set of circumstances.
Below, we outline the new salary history bans in Nevada and Rhode Island and include a round-up of these laws across the country.
- Alabama: Alabama law prohibits employers from discriminating based on sex and race with respect to the payment of wages. Under this law, employers may not refuse to interview, hire, promote, or employ any applicant or retaliate against any applicant for not providing a salary or wage history.
- California: Under California’s salary history ban, employers are prohibited from seeking an applicant’s salary information or relying on it to determine whether to offer employment or what salary to offer an applicant. In the event an applicant voluntarily discloses salary history information, employers are permitted to consider or rely on that information to determine the applicant’s salary. Employers are barred from using salary history to justify pay disparity.
- San Francisco, California: The city of San Francisco enacted its own ban on prior salary history information. The city’s ban prohibits employers from refusing to hire or retaliate against an applicant who does not disclose prior salary information. If an applicant voluntarily discloses salary history, employers may verify the applicant’s salary history. Unique to San Francisco, the city prohibits employers from releasing a current or former employee’s salary information without the employee’s written authorization.
- Colorado: Colorado’s Equal Pay for Equal Work Act prohibits employers from discriminating on the basis of sex by paying less for substantially similar work. The Act also prevents employers from seeking or relying on an applicant’s wage history to make wage decisions. Further, employers may not discriminate or retaliate against an applicant for not disclosing salary history. Lastly, an employee’s salary history cannot be relied upon to justify a disparity in current wage rates.
- Connecticut: Connecticut law prohibits employers from asking applicants about their salary history unless the individual has voluntarily disclosed such information. Employers are permitted to inquire about the applicant’s previous compensation structure, as long as the employer does not inquire about the value of the elements in the applicant’s compensation structure. An amended version of the law, which requires employers to provide the wage range for the position, goes into effect on October 1, 2021.
- Delaware: Delaware law forbids employers from seeking an applicant’s pay history, from the applicant or their employer, before making an offer. Employers are permitted to discuss and negotiate compensation expectations with an applicant so long as the employer avoids asking for the applicant’s compensation history. Once an employment offer is extended and accepted, the employer may seek the applicant’s compensation history only to confirm pay history.
- Hawaii: Hawaii prohibits employers from inquiring about an applicant’s current or prior wage, benefits, or other compensation. In addition, employers are specifically prohibited from searching publicly available records or reports to ascertain an applicant’s salary history. Applicant’s are not precluded from sharing their salary history. However, if an applicant shares their salary history, employers can consider that information to determine the applicant’s compensation package and verify the salary history.
- Illinois: Illinois prohibits employers from requesting or requiring a job applicant to disclose wage or salary, benefits, or other compensation received at any current or former employer as a condition of being considered for employment. The prohibition against seeking an applicant’s salary or wage history does not apply to current employees or if the applicant’s salary history is a matter of public record. It is illegal for employers in Illinois to discriminate or retaliate against an applicant for not disclosing salary history.
- Maine: Under Maine law, employers are prohibited from inquiring about an applicant’s compensation history from the applicant or their current or former employer. However, employers are permitted to inquire about compensation history after negotiating and making an offer that includes all the compensation terms.
- Maryland: Maryland law prohibits employers from requesting or relying on an applicant’s wage history to make decisions about employment or to determine an applicant’s wage. If the employer extends an initial offer of employment that includes compensation, employers may rely on or confirm the wage history to support a higher offer.
- Massachusetts: Massachusetts prohibits employers from seeking an applicant’s salary history from the applicant or their current or former employer. Employers are also prohibited from requiring that an applicant’s salary history satisfy certain criteria. If the applicant voluntarily discloses their wage history or an offer of employment with compensation is negotiated and made to the applicant, employers may confirm an applicant’s salary history.
- Kansas City, Missouri: Kansas City’s ordinance prohibits employers from seeking an applicant’s wage, benefit, or other compensation history from the applicant or their current or former employer or by searching publicly available records or reports. In addition, employers are banned from relying upon wage history or discriminating against applicants who do not provide such information. Employers may confirm an applicant’s salary or wage history if the applicant voluntarily discloses the information or after an offer of employment with compensation is negotiated and made to the applicant.
- New Jersey: New Jersey law prohibits employers from screening applicants based on salary history, requiring applicants to provide salary history, considering an applicant’s refusal to provide salary history, or inquiring about earnings under prior commission or incentive plans. However, if an employee voluntarily discloses salary history (without “prompting or coercion”), the employer may verify the information and consider it when determining compensation. Further, employers are permitted to request salary history at the post-offer stage if the offer includes an explanation of the overall compensation package.
- Nevada: Effective October 1, 2021, Nevada law prohibits employers from seeking salary history, relying on such information to set compensation or determine whether to make an offer of employment, retaliating against those who do not provide salary history or due to an employee’s protected conduct under the statute. However, employers may ask an applicant about salary expectations.
- New York: New York law prohibits employers from seeking salary history or relying on an applicant’s salary history to set compensation or determine whether to make an offer. Employers are also prohibited from seeking salary history as a condition of being interviewed or considered for employment or a promotion. Employers should not even seek voluntary disclosures by way of “optional” questions about salary history on job applications. Still, they may confirm information voluntarily disclosed as part of a request to seek higher compensation. Employers may inquire about an applicant’s salary expectations and consider current employee compensation already known to the employer.
- Albany County, New York: Employers in Albany County are prohibited from requesting salary history, screening applicants based on prior compensation, or requiring that prior compensation satisfies any particular criteria.
- New York City, New York: Employers in New York City are prohibited from soliciting information about prior earnings or benefits, searching public records to learn about prior compensation, or relying on information learned about an individual’s prior compensation when setting compensation.
- Suffolk County, New York: Employers in Suffolk County, New York, are prohibited from inquiring about compensation history (including searching publicly available records) or relying upon such information in determining compensation or at any stage in the employment process.
- Westchester County, New York: Employers in Westchester County, New York, may not request salary history or rely on such information to determine wages. An employer may not refuse to hire an employee or applicant based on prior compensation history or due to an employee’s protected conduct under the ordinance.
- Cincinnati and Toledo, Ohio: Employers in Cincinnati and Toledo are prohibited from inquiring about compensation history (including searching publicly available records), screening based on compensation history, relying on salary history in making employment decisions or setting compensation, or retaliating against applicants for failure to disclose salary history. However, employers may ask about an applicant’s salary expectations.
- Oregon: Oregon law prohibits employers from seeking salary history, screening applicants based on current or past compensation, or using salary history to set compensation. However, employers may request confirmation of prior compensation after making an offer (including an offer of compensation), and may consider current employee compensation for internal promotions or transfers.
- Philadelphia, Pennsylvania: In Philadelphia, employers may not inquire about salary history, require disclosure of the same (including conditioning employment or interview upon wage disclosure), or rely on an applicant’s compensation history at any stage in the employment process. However, if an applicant “knowingly and willingly” discloses such information, it may be considered. Employers are also prohibited from retaliating against an applicant who refuses to comply with a salary history inquiry, or otherwise engages in protected conduct under the Ordinance.
- Rhode Island: Effective January 1, 2023, Rhode Island law prohibits employers from seeking salary history, relying on such information when setting wages or deciding whether to consider an applicant for employment, refusing to hire or retaliating against an applicant who does not provide salary history or who requested the wage range for the position. Employers are also prohibited from requiring that an applicant’s salary history satisfy certain criteria, or retaliating against those who engage in protected conduct under the statute. Employers may rely on salary history in only narrow circumstances, such as a person who voluntarily (without prompting) discloses salary history, or information about unvested equity or deferred compensation subject to forfeiture.
- Vermont: Vermont law prohibits employers from inquiring or seeking salary history or determining whether to interview an applicant based on current or prior compensation. Employers are also prohibited from requiring that an applicant’s salary history satisfy certain criteria. Employers may, however, ask about salary expectations, provide information about the compensation offered, or confirm prior salary history only after making an offer of compensation, and only if the applicant voluntarily discloses such information.
- Washington State: Washington law prohibits employers from seeking salary history or requiring that an applicant’s salary history satisfy certain criteria. However, employers may confirm compensation history if the applicant voluntarily discloses such information, or after negotiating and making a compensation offer.
