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Salary History Bans and the Employment Process

 In Background Checks, BLOG
Ban the Box Movement - Cities and States Compliance


Does your state or locality have a salary history ban when it comes to the hiring process? If so, do you know if you’re allowed to factor in salary history if the information is volunteered to you? Or how about after the employment offer is made? On the surface, it may seem straight forward, but every state or local law has its own set of restrictions and allowances when it comes to salary history questions during the interview process.

What an employer can and cannot ask in an interview or on an application is becoming increasingly more complicated. Just like ban the box laws regarding the criminal conviction question, many states and localities now have rules restricting applicant salary history inquiries on the application and in the interview process. It is a rapidly changing and sometimes debated issue in the HR world.

There are currently 16 US statewide bans that prohibit the salary history question and 18 local bans. Two states, (Michigan and Wisconsin) currently have laws on the books stating that you can’t ban the salary history question. In fact, Philadelphia’s salary history ordinance remains on hold while a judge considers a legal challenge to the regulations. The judge granted a preliminary injunction temporarily halting the city ordinance saying that Philadelphia’s salary history ban violates the First Amendment.

But for those states and localities that do have salary history ban requirements, the laws go beyond simply removing that question. For example, if an applicant declines to provide their salary history, Alabama employers can’t use that to refuse them employment and Colorado and Montgomery County, Maryland employers many not discriminate or retaliate against them. Other trending stipulations in some of the state and local laws include not being able to use the pay history information to determine a new hire’s pay even if they volunteered the information, being required to provide pay scale information if it is requested by the applicant, and not dictating their salary history satisfy minimum or maximum requirements.

Some salary history ban legislation is not as restrictive. Examples include the state and local laws that allow the applicant’s salary to be confirmed once an offer is extended or after they have been hired at an agreed-upon salary, being allowed to rely an applicant’s salary information as long as it is volunteered by the applicant, and being allowed to discuss an applicant’s pay expectations.

Read on for a breakdown of the state and local bans, (and the states that prohibit salary history bans), links to legislation, and which states and localities have extra stipulations or allowances regarding the question of salary history bans.

Salary History Ban Employment Applciation

(Scroll to the bottom section to see a list of each state/locality with a link to the law or ordinance)

Can’t refuse, discriminate or retaliate against an applicant if they don’t provide pay history:

  • Alabama
  • Colorado
  • Montgomery County, Maryland

Even if provided, can’t use pay history to determine a new hire’s pay:

  • California
  • Cincinnati, Ohio (w/15 or more employees)
  • Colorado
  • Montgomery County, Maryland
  • New York State Agencies & Departments
  • New York City
  • New York (Suffolk County)
  • North Carolina State Agencies
  • Oregon
  • Salt Lake City – City Hiring Process
  • San Francisco, California

Employer’s must provide pay scale information per applicant request:

  • California
  • Cincinnati, Ohio (w/15 or more employees) if given conditional offer
  • Washington (w/15 or more employees) if given conditional offer

Can’t require that the applicant’s salary history satisfy minimum or maximum criteria:

  • New Jersey State Entities
  • Toledo, Ohio (w/15 or more employees)

Allowed to confirm salary information after an offer is extended or they have been hired at an agreed upon salary:

  • Delaware
  • Kansas City, Missouri
  • Maine
  • Massachusetts
  • Michigan State Departments
  • New Jersey
  • New York State Agencies
  • New York
  • New York (Albany County)
  • Oregon
  • Vermont
  • Washington

Allowed to rely on salary history if it was volunteered by the applicant:

  • Hawaii
  • Massachusetts
  • Kansas City, Missouri
  • New Jersey
  • Pittsburgh, Pennsylvania
  • Washington

Allowed to discuss an applicant’s pay expectations:

  • Illinois
  • Kansas City, Missouri

States with Salary History Bans – (US Statewide Bans)

  • Alabama, Effective 9/1/19, Affects All Employers, View Law
  • California, Effective 1/1/18, Affects All Employers, View Law
  • Colorado, Effective 1/1/21, Affects All Employers, View Law
  • Connecticut, Effective 1/1/19, All Employers, View Law
  • Delaware, Effective 12/14/17, All Employers, View Law
  • Hawaii, Effective 1/1/19, All Employers, View Law
  • Illinois, Effective 9/29/19, All Employers; View Law
  • Illinois, Effective 1/15/19, State Agencies, View Announcement
  • Maine, Effective 9/17/19, All Employers, View Law
  • Massachusetts, Effective 1/1/18, All Employers, View Law
  • New Jersey, Effective 2/1/18, State Entities, View Order
  • New York, Effective 1/9/17, Gov’t Agencies, View Law
  • New York, Effective 1/6/2020, All Employers, View Law
  • North Carolina, Effective 4/2/19, State Agencies, View Order
  • Oregon, Effective 10/6/17, All Employers, View Law
  • Pennsylvania, Effective 9/4/18, State Agencies, View Law
  • Vermont, Effective 7/1/18, All Employers, View Law
  • Washington, Effective 7/28/19, All Employers, View Law

Localities with Salary History Bans

  • San Francisco, CA, Effective 7/1/18, All Employers, View Law
  • Atlanta, GA, Effective 2/18/19, City Agencies, View Announcement
  • Chicago, IL, Effective 4/10/18, City Departments, View Order
  • Louisville/Jefferson County, KY, Effective 5/17/18, Metro Gov’t, View Law
  • New Orleans, LA, Effective 1/25/17, City Departments, View Order
  • Montgomery County, MD, Effective 8/14/19, Government, View Law
  • Jackson, MS, Effective 6/13/19, City Departments, View Law
  • Kansas City, MO, Effective 7/26/18, City Departments, View Law 
  • Kansas City, MO, Effective 10/31/19, All Employers with 6+ Employees, View Law
  • New York, NY, Effective 10/31/17, All Employers, View Law
  • Albany County, NY, Effective 12/17/17, All Employers, View Law
  • Suffolk County, NY, Effective 6/30/19, All Employers, View Law
  • Westchester County, NY, Effective 7/9/18, All Employers, View Law
  • Cincinnati, OH, Effective 3/2020, City Employers with 15+ Employees, View Law
  •  Toledo, OH, Effective 6/25/20, City Employers with 15+ Employees, View Law
  • Philadelphia, PA, – On Hold – Judge says Salary History Ban Violates First Amendment
  • Pittsburgh, PA, Effective 1/30/17, City Departments, View Law
  • Richland County, SC, Effective 5/23/19, The County, View Document
  • Salt Lake City, UT, Effective 3/1/18, City Departments, View Law

States where it is against the law to prohibit the salary history question.

  • Michigan, Effective June 24, 2018, View Law
  • Wisconsin, Effective April 18, 2018, View Law

To conduct employment background investigations or get information about best practices, contact our office at (518) 514-2944 or email sales@allianceinvestigative.com

Source: www.hrdive.com

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