Asking Employees About Salary Expectations Could Lead to Discrimination Claims

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

In recent years, a number of states have passed laws prohibiting prospective employers from asking applicants about their salaries in their current jobs or overall salary history. However, these laws may not restrict employers from asking applicants about their salary needs or expectations for the advertised position. Asking questions such as these during job interviews could raise questions with regard to compliance with federal equal pay laws.

These arguments go as follows: If an applicant requests a pay level less than what the employer was otherwise willing to offer, the company may take advantage of the wage savings. Studies conducted by the Equal Employment Opportunity Commission and other groups have concluded that, statistically, women are less likely to aggressively bargain for higher salaries. Therefore, if salaries are based on applicant expectations, this practice could have a disparate impact on women.

Last week’s EmployNews described a new Microsoft policy that sets starting salaries for all U.S. positions based on published ranges. The use of such salary bands rather than individual negotiations with applicants could help avoid claims that the employer’s hiring practices unintentionally but improperly result in a disparate impact based on gender.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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