In the current economy, the hiring process and salary negotiations are already slanted toward employers and against employees. This makes a new trend among employers to require potential hires to provide previous W-2 forms – sometimes years’ worth of them – particularly worrying. But is it illegal?
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Is Requiring These Forms Legal?
The first question many potential employees facing this request is often, “Do I have to give it to them?” As Hannah Morgan of CareerSherpa points out, you certainly do not have to, but refusing to provide the form may likely negatively impact your chances of getting the job.
The followup question candidates often have is, “Is requiring me to provide these forms legal?” The best answer we can give you to this one is, “Yes, but maybe not.” Simply asking for the forms does not in and of itself violate any laws. However, the reason for requesting these forms may, in some circumstances, run afoul of the law.
W-2s Provide Salary Information, But They Also Provide Much More
PayScale’s Director of Professional Services, Mykkah Herner, recently weighed in on this topic. He says that a likely reason that employers are asking for this information is to confirm your current pay rate.
“Many employers will ask you to say what you’re currently making or to provide a salary history,” Herner says. “This isn’t new, and has long been a part of recruiting practices. It’s interesting to see this trend towards requesting W-2s. To me, it suggests a lack of trust on the part of the potential employer, which is a major red flag.”
Additionally, he suggests that you consider the things besides salary information that appear on your W-2, like dependent care benefits.
He says, “We know organizations can’t discriminate on things like marital status, so it seems suspect to me to inadvertently request this information prior to hire.” This is where the potential for illegality comes into play.
Employers Could Use W-2 Data to Engage in Unlawful Discrimination
Some tax forms, such as the W-4, include information about marital status and also suggest the number of a children a person may have due to the number of tax exemptions he or she claims. W-2 forms also include a section that details dependent care benefits an employee has received, which can tip employers off as to parental status.
According to the Equal Employment Opportunity Commission, questions about marital status and number and ages of children are frequently used to discriminate against women in violation of Title VII. Asking a potential job candidate questions about marital or parental status may in and of itself be considered evidence of an intent to discriminate against married women or women with children.
Companies who aim to discriminate but know that they cannot come right out and ask job candidates these questions may now try to backdoor their way into the information by requesting these tax forms. This discrimination would be illegal if the employer is covered by the Civil Rights Act. It may also violate state law. So while asking for these forms is not on its face
illegal, it may be a cover for illegal activity in some cases.
This post was changed to reflect the fact that marital status appears on the W-4, not the W-2 form.
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Do you know someone who has been asked by a potential employer to provide a copy of his or her W-2? We want to hear from you! Leave a comment or join the discussion on Twitter.