Asking About Salary is Not Only Rude, It May Be Illegal
Most people agree that it is pretty tacky to ask someone how
much they earn, at least in social situations. We usually don’t bat an eye when
a prospective employer asks us how much we earned in our old job. In fact, many
applications for employment ask for a complete salary history. That may be
about to change.
In a few
weeks, New York City will join three states (Massachusetts, Delaware and
Oregon) and one other major city (Philadelphia) in banning employers from
asking prospective candidates about their salary history. A similar law will go
into effect in California at the beginning of 2018.
These laws hope to reduce the historical
disparity in pay between men and women on the premise that if a woman’s prior
salary was caused by discrimination, that discrimination will persist if any
subsequent employer is influenced by that salary when setting a salary for the
newly hired employee.
each of these jurisdictions will need to remove any questions about salary
history from their applications for employment. Additionally, anyone who is
involved in the hiring process — e.g., human resources, managers, or any
employee who might be asked to interview a new candidate — will need to be
instructed about these new laws, which in some cases could result in steep
these laws list circumstances where salary may be discussed or relied upon when
making salary determinations. In the New York City law, for example, an
employer will still be able to engage in a discussion with an applicant about
their expectations with respect to salary and discuss any bonuses or unvested
equity that they may be forfeiting if they leave their former employer. Most of
these laws also allow an employer to consider an employee’s salary if the
employee voluntarily discloses their salary without any prompting from the
employer, but I would be very careful here because the applicant could later
deny that the disclosure was voluntary.
employers who do not have operations in states or cities with these “fair
hiring” laws, you may continue to ask candidates about their salary histories.
However, don’t get too comfortable. Employers are increasingly facing lawsuits
under Title VII and the Equal Pay Act alleging they have been paying women less
than men for performing the same work. If there is a possibility of disparity
in your workplace you may want to determine whether it has been caused by
reliance on prior salary histories.