As of January 1, 2019, Connecticut and Hawaii have joined the ranks of California, Delaware, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, and Vermont by adopting state-wide bans against salary history inquires. State and local governments across the country are increasingly introducing and passing legislation prohibiting employers from asking candidates their salary history information, with the aim of ending pay inequity.  The purpose behind salary history bans is to prevent employers from relying upon a candidate’s previous, and potentially discriminatory, pay to determine the applicant’s future salary, effectively stopping a cycle of gender and minority pay disparity.

  • Connecticut: In May 2018, Connecticut Governor Dannel Malloy signed “An Act Concerning Pay Equity” into law. The law prohibits employers from inquiring or directing a third party to inquire about a prospective employee’s wage and salary history. Connecticut employers may inquire generally about other elements of a job applicant’s previous compensation structure, such as stock options, but may not inquire about the value of such compensation. However, employers are free to discuss a candidate’s compensation history if he or she has voluntarily disclosed it.
  • Hawaii: Similarly, in June 2018, SB 2351 amended Chapter 378 of the Hawaii Revised Statutes. The law prevents employers from inquiring about or relying on the salary history of a candidate during the hiring process. Additionally, employers are prohibited from conducting a public record search for an applicant’s salary history. The ban does not apply to applicants for internal promotions or transfers. However, Hawaii employers may discuss and verify an applicant’s salary history if the applicant has voluntarily disclosed such information.

Ohio has not passed a salary history ban (yet), so Ohio employers are in the clear for now. However, with legislation introduced or pending in several localities, this trend is expected to continue. Accordingly, multi-state employers need to be aware of how bans may affect their businesses and should regularly review and update hiring processes to ensure compliance with the many differing state and local bans.

183809648-57a54ae55f9b58974ab92602As my colleague Keith Ashmus recently noted, most employers currently ask job applicants for their salary histories. This is a reasonable question, and one that employers find useful to help attract and retain talented employees. Given recent legislative initiatives and judicial decisions on this topic, however, employers should tread carefully.

In the past few weeks, both the state of Oregon and New York City have joined a growing list of jurisdictions that restrict employer inquiries into job applicants’ salary histories. Other states include California and Massachusetts, while other notable cities include Philadelphia, New Orleans, and Pittsburgh. At least 20 other states and many other cities are considering similar legislation. Several of these laws impose fines on employers for violations, and some even include potential jail time.

By way of example, the New York City law, which took effect last month, makes it an “unlawful discriminatory practice” for employers: (1) “to inquire about the salary history of an applicant for employment;” or (2) “to rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract.”

“Salary history” is broadly defined to include an applicant’s “current or prior wage, benefits or other compensation.” This concept does not, include, however, any “objective measure of the applicant’s productivity, such as revenue, sales or other production reports.” “Inquiry” is likewise broadly defined as “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history.” The inquiry restriction includes searching publicly available records.

Even for employers who operate in jurisdictions that do not prohibit salary-history inquiries—such as Ohio—other laws may limit the extent to which such information may be used in determining compensation. According to the  Sixth Circuit Court of Appeals (which includes Ohio, Michigan, Kentucky, and Tennessee), for example, the federal Equal Pay Act prohibits employers from relying on salary history as the sole justification for paying two otherwise-equal employees differently, particularly if those employees are different genders.

With these issues in mind, multi-state employers should ensure that they do not run afoul of any state or local laws regarding the procurement or use of salary history. Additionally, all employers should also be cautious when considering salary history as a lone or significant factor in setting compensation, particularly in light of the potential for perpetuating gender pay disparities. Employers should, at a minimum:

  • Avoid relying on salary history as the lone determination of starting pay;
  • Periodically review compensation practices to ensure non-discriminatory and equitable treatment;
  • Document market factors that contribute to any discretionary determination of starting pay, including the individual’s education, prior experience, special skills, and expertise, individual negotiations by the candidate, market factors, and other job-related factors; and
  • Comply with state and local laws regarding salary history inquiries and use of prior salaries in making compensation determinations (and stay abreast of increasing changes).

Stillwater PlaceThe annual Frantz Ward Labor & Employment Seminar is consistently a great learning experience for both clients and guests and for the presenters from our Labor & Employment Practice Group. This year’s program, at the new Stillwater Place facility at the Cleveland Metroparks Zoo, was no exception. Our audience of HR professionals, business owners, and attorneys heard not only from our lawyers, but also from experts in fields such as medical marijuana and managing a premier metropolitan park system. The participants also provided feedback on some important current issues in the human resources world. We asked formal questions to the over 300 guests and received responses through Poll Everywhere software. While the invitations were not based upon a scientific selection of the HR universe, the number of responses was valid as reflective of the group that was in attendance.

The subjects of the polling were pre-employment background checks under the Fair Credit Reporting Act (“FCRA”), inquiries on past criminal history, and pre-employment questions on prior salary history. It may be interesting to know what the responses were.

Pre-Employment Background Checks

The FCRA has a number of non-intuitive requirements that may create problems for employers who fail to follow the requirements exactly. For example, the FCRA requires that subjects of background checks be provided with a disclosure that consists of the disclosure and nothing else (except in some cases the permission from the applicant may be in the same document.) Permissions contained in the general application forms, for example, may not be proper. Waivers of claims against the prospective employer included within disclosure forms have created liability for a number of businesses. The polling revealed that many employers do include authorizations for background checks within their application forms.

Many employers also include waivers within their permission forms.

Criminal History

With many more working age individuals having some criminal history, the general approach of employers is to ask about relevant criminal conviction history and then make individualized judgments about the suitability of the employee in the particular circumstances of the employer.

Employer experience with hiring people having felonies on their records is much the same as with people with “clean” records.

Salary History

Philadelphia, New York City, and other jurisdictions are attempting to prohibit employers from even asking about salary history. The theory is that females generally have had lower pay in the past, and if their salary at hire is based on that lower prior pay rate, they will start out behind and likely stay there. If employers are prohibited from asking for the information, they will not be able to justify lower pay for females upon their previous pay. The vast majority of employers ask about prior pay rates and find the information very useful.

Despite asking for and using the data on pay rates, most employers recognize that paying new employees based upon prior rates (plus an increase) does perpetuate inequality in pay between men and women.

Conclusion

The takeaways from this brief survey are:

  1. Employers do not have sufficient awareness of the specific, non-intuitive and unnecessary requirements of the FCRA.
  2. Employers are very willing to hire felons who demonstrate rehabilitation and qualifications for the job, but they do want to have the ability to know about the past criminal history.
  3. Employers use, and want to continue to use, prior pay history in setting initial pay for new employees, but are aware of the potential impact on pay equity. They are therefore willing to be flexible.