Legal Insider: Banning Salary Inquiries During Job Interviews

by Kimberly Berry September 26, 2016 at 2:00 pm 13 Comments

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

We are seeing the start of what may be a nationwide trend after Massachusetts recently became the first state to ban employers from asking job applicants about their salaries during the job interview process.

The bipartisan legislation that was signed into law in early August requires an employer to state a position’s compensation upfront based on what the job applicant is worth to the employer as opposed to what the job applicant made in his or her previous employment position.

Now other legislators are working at the Congressional level, as well as at the state level, to use this law as a model to create similar legislation. On Sept. 14, 2016, a bill was introduced in Congress by Washington, D.C. Representative Eleanor Homes Norton (D) and fellow Democratic Representatives Rosa DeLauro from Connecticut and Jerrold Nadler from New York.

Under the Pay Equity for All Act of 2016 (H.R. 6030), an employer could be subject to a fine of up to $10,000 if it asks questions about an applicant’s salary history. Employers could also be liable to employees or prospective employees for special damages up to $10,000, in addition to attorneys’ fees.

There has already been an effort, although not entirely successful, to strengthen equal pay laws. However, there is hope that a bill prohibiting employers from asking about salary history before making a job offer will help to eliminate the wage gap that women and people of color often encounter.

A news release announcing the bill indicated that while many employers may not intend to discriminate based on gender, race, or ethnicity, asking for previous salary information prior to offering employment to a job applicant can have a discriminatory effect in the workplace.

Holmes Norton’s office also indicated: “Because many employers set wages based on an applicant’s previous salary, workers from historically disadvantaged groups often start out behind their white male counterparts in salary negotiations and never catch up.” Other states have created or are creating similar legislation, such as New York and California.

There is a prevailing belief that many factors should be considered when establishing a salary for a certain employment position, such as position duties and responsibilities, past experience, educational requirements, industry and market standards and practice.

As such, this bill and other similar efforts aim to eliminate the wage gap and discrimination that may intentionally or unintentionally exist when an applicant’s previous salary is the sole or main method for establishing that applicant’s starting compensation.

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  • Scott H

    Does anyone realize that is mostly going to prevent less experienced people from getting jobs?

    As someone who makes hiring decisions, I sometimes interview people with different experience levels.
    If I can get an Experienced person for $100K a year, but a less experienced person for $80K who I view as having great upside potential to grow into a $100K+ employee (even if they don’t provide it day 1), I may hire the less-experienced person.
    Like most regulation, this new law would favor the old incumbents at the expense of the young and less experienced.

    • Don’t be lowballin’

      You know you can still offer the experienced candidate $100K and the less experienced candidate $80K, right? You don’t need to know their salary histories to do that.

      • Scott H

        That’s not what it says:
        “The bipartisan legislation that was signed into law in early August requires an employer to state a position’s compensation upfront based on what the job applicant is worth to the employer as opposed to what the job applicant made in his or her previous employment position.”

        Define “Upfront.”

        The value of a person may not be ascertained until the interview. It cannot always be gleaned from a resume. Make no mistake. This law will lead to fewer “less-qualified” people bring interviewed.

        And for the record, I am also an employee. I hate being asked to provide past W-2(I generally refuse) and I never ask applicants for them, but there should be no harm in asking an applicant for their salary requirements to ascertain whether it is even worth discussing. No sense in wasting their time or that of the company.

        • Chuck Morningwood

          I don’t see why they would have to fix an exact pay rate. The employer might say that the salary is in the range of $X – $Y depending on experience and other factors. That would give the employer room to bargain based on employee’s worth.

          • Scott H

            Maybe. Do you trust the govt to do it right and to tell a business how to conduct itself? History is not on the side of Govt. Most of these regs hurt the poorest and least experienced among us: See: minimum wage, professional licensing, etc

          • Chuck Morningwood

            Absolutely I I do believe that regulation of business is a necessary and proper function of government. Frankly, I’m comforted somewhat that anyone who calls himself a doctor has to meet some kind of guidelines instead of just allowing anybody to practice medicine.

    • Anonymous

      Or you could, y’know, just advertise what the position is willing to pay, and let people self-select out if they want or opt in. Then you’ll be able to snag the best person that self-selects into a position, and screen for those that’ll jump ship within a year through the interview process.

      Anyway, basing an offer off of salary history is not only lazy, it’s possibly discriminatory. That’s based on women generally not negotiating salary, you’ll be contributing to a pay gap, and potentially opening yourself up to lawsuits.

      • Scott H

        1. You did not read/understand what I wrote. You also don’t understand how hard it can be find good applicants for certain positions. I have no interest in cheating anyone, but this regulation will cause companies (as they always do) to take the conservative legal approach and it WILL prevent (generally)less experienced people from getting a shot.

        2. The pay gap is a myth. It does not control for career choices, working fewer hours, child rearing decisions, desire for flexibility over pay, etc. In fact, when you look at single people under 30 in the same career field, women make slightly more than men. It has been thoroughly debunked but it still repeated as fact over and over again. Spend 5 minutes on Google and you can find the truth, however contrary to the political agenda of some it may be.

      • Why do you bother?

        I never answer the question, and turn it back around to the interviewer: “What is the salary range for the position.” 98 percent of the time, they tell me. I don’t want to work for a company that won’t be upfront about salary.

    • Why do you bother?

      This is BS. If employers would simply tell you the salary range for the position, they’d get what they need. What I earned at my previous job has absolutely no bearing on the one I’m applying for.

      • One Really

        Amen! When I was leaving the military every company thought they could get me on the cheap. I had a range in mind and if they didn’t want to pay I went on to the next place.

        • Why do you bother?

          I just had this very discussion with a potential employer 10 minutes ago! She then told me the cap for the position. See? Easy!

          • One Really

            Long story, but I will sum it up.

            I am eating out one night. The family is out of town. Its just me and the dog. I go out for BBQ. I am at the bar area, but I dont drink. I want to watch the Nat’s game.

            I ask the guy next to me about his wings and we start into a 2 hour discussion. Remind you I have nothing to do for 4 weeks after work. 🙂

            He works for a large company and is in need of my kind of talent. He is a hiring manager and has some positions to fill.

            The catch I work from home now and he would need me to drive into DC twice a week. The other days work in an cube farm.

            Remind you this isn’t a formal interview, just yeah what would it take for you to move.

            I told him my range for base salary and my bonus range. Plus there would be the fee of me returning to an office. 🙂

            I gave him my range offer and he looked at me I had three heads.

            We when back to talking about kids and wings.


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