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Asking for Salary History Could Soon Be Illegal in All 50 States

Last month, Massachusetts Gov. Charlie Baker signed a bill requiring equal pay for equal work. The bill also banned employers in the Commonwealth from asking prospective hires for their salary history, making Massachusetts the first state in the nation to enact such a law—but perhaps not the last. While California and New York State consider similar legislation, a new bill would make asking for salary history illegal nationwide.
salary history
Image Credit: Joshua Ness/Unsplash

Congresswoman Eleanor Holmes Norton (Dem.-DC) will soon introduce a bill to prohibit employers from asking job candidates for their salary history during the job interview or salary negotiation process. The bill will be cosponsored by Representatives Rosa DeLauro (Dem.-CT) and Jerrold Nadler (Dem.-NY).

“Women and minorities often face discrimination in the job application process and in salary negotiations,” said Norton in a news release. “Many carry lower salaries for their entire careers simply because of wages at previous jobs that were set unfairly. Our bill will require employers to offer salaries to prospective employees based on merit, not gender, race, or ethnicity.”

How Salary History Maintains the Gender Pay Gap

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“It was not instinctive to me to understand that asking an applicant for prior history could have a lifelong discriminatory affect,” Norton told ThinkProgress. But: “All you need to do is think five seconds about it and you understand it.”

A worker’s salary history follows her from job to job. Low pay at an early job can affect salary at a later one, because hiring managers often base their offer on previous pay. Even candidates who negotiate and advocate strongly for themselves at the salary phase can wind up with a lower offer than someone who happened to earn more at an earlier position. In practice, workers who get lower offers are often women.

Contrary to popular belief, it’s not because women don’t ask. Women are nearly as likely to negotiate salary as men (42 percent of women vs. 44 percent of men, according to PayScale’s Salary Negotiation Guide), but slightly less likely to get the bump in pay they ask for (43 percent of women vs. 46 percent of men). They also pay a higher social penalty when they attempt to negotiate. Making salary history part of the job interview process means that tomorrow’s salary depends on yesterday’s wages, which makes it harder for female candidates to get paid what they deserve.

“If this disparity can begin from the moment you go to your first job, and it follows you throughout your career, it will never be rectified and the wage gap itself will never be rectified,” said Norton. “It is a hidden form of discrimination that many employers may think is reasonable to ask and may not understand the discriminatory effect.”

Hidden discrimination is one reason why even women with the same jobs and experience earn less than men:

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Ninety-seven cents on the dollar is a lot better than the 79-cent figure we sometimes hear, but it’s still not equal pay for equal work. Perhaps Congresswoman Norton, who has a history of fighting to close the gender pay gap as the first female chair of the Equal Employment Opportunity Commission, can help close the gap for good.

Are you being paid what you deserve? Take PayScale’s Salary Survey and generate a free salary report that gives you an appropriate range for your skills and experience.

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Jen Hubley Luckwaldt
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21 Comments on "Asking for Salary History Could Soon Be Illegal in All 50 States"

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Dan
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I owned a company for 15 years hiring and firing over 100 people in that time. I NEVER asked anyone their salary. I would post a job online, and gave the salary range I was offering. I knew what I wanted to pay for that position. i.e. Between $x and $y. If the candidate came in and and knew their stuff, they were offered $y. If they were just okay, they were offered $x. If they sucked, they were told they didn’t get the job. Simple!! No Games!! I could care less if that person had made 5x less at… Read more »
Lalitah
Guest

I totally agree with this legislation. Employers hold too many cards in this regard and are, in many cases, actively cheating a candidate than paying a fair and market-based salary.

Abe
Guest
Me too. This legislation has been long overdue. Many employers have leveraged their knowledge of a candidates prior salary against them in negotiations. I suspect that this practice has dramatically inhibited the ability of the labor market to adjust to changing conditions. After all, sometimes you (as “Craig” so eloquently puts it) may take a lower paying position because you need a job, or because it’s a good opportunity. But then it can be nearly impossible to dig yourself out of that hole if you have to reveal your previous salary history in order to get a new job. Take… Read more »
Average Random Joe
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I disagree. I was able to negotiate a 30% increase in my future employer’s initial job posting maximum, in fact they created a new job at a higher level to do so, because they knew my previous pay. “I suspect that this practice has” And I suspect the opposite. ” may take a lower paying position because you need a job,” Well, every needs a job. Some people take it from others, others create their own. “because it’s a good opportunity.” If it is a good opportunity, what is the complaint. “But then it can be nearly impossible to dig… Read more »
Vic
Guest

You can name whatever salary you want. Nobody’s can verify it.

Abe
Guest

Not true. Just this month I had a written offer for a job and it fell through because they required documentation (pay stub or W2) to verify prior salary history.

Kathy
Guest
Wow, I thought I was the only one this happened too! Same thing, I was offered a job, and they asked what I was paid at my last job. I told them ( upped it a little bit as I thought when you went for a job you could ask for what you want) they then not only asked for my W2 but wanted my medical records as i had been off of work for 2 months due to an illness. I refused that request and did not get the job. I found out that they thought I was lying… Read more »
Average Random Joe
Guest

Well if you told them a salary you didn’t make, you were lying. I think the gap in employment is stupid, but it can be an indicator of problems with you they can’t see. If you claim to be on medical leave at the company, they would require the same thing. That you weren’t willing to give it then shoots up red flags. Asymmetric information will do that to you. If you hide something easy, how can they trust everything else you claimed.

They consider themselves even luckier I assure you.

Average Random Joe
Guest

If employers hold too many cards, then become one and stop complaining.

Craig
Guest
Could not agree more that this legislation s/b passed universally. Not only does it stunt comp growth for women and minorities, but how about this situation as well… Worker A (male) who is in late 40s gets RIF’d in 2012 after 20yrs of quality service and above avg evaluations and near the top of his grade. He is unable to transition to a comparable position with a similar organization despite being willing to settle to mid-level comp (10-20% decrease). After a 15mo search, he feels “forced” to accept the first offer he gets for a position that he is overqualified… Read more »
Bill
Guest

A business should be allowed to hire who they want, that said asking this question is not fair because they have a salary range for that position and most times this won’t be shared with the potential employees but yet they feel entitled to know the interviewers previous salary. That is just hypocritical.

Robert
Guest

We need this. Access to employee records should also be national law like it is in California since more companies are refusing to give written performance reviews. It should also be illegal to inquire about gaps in someone’s employment history and discriminate against unemployed people.

WageDrop
Guest

How about requiring employers to disclose wages/salaries up front. Hiding them is like used car dealers not pricing cars on their lot, but waiting to see how big a sucker they reeled in before deciding the price.

Hardy
Guest

As an independent recruiter, I support this legislation 100% — far too many times, I have seen people being low-balled or even not selected for an interview because their previous employers did not pay them enough! Candidates are always honest about what they make, and although I can’t ask them to lie, many times I have wished I could, as I see people get paid much less than they should (or again, sometimes perfectly qualified candidates do not get interviews as their salary is not within 10k of the target salary range).

Susan
Guest
The fact is (last time I checked) ONLY women can have babies, so we have to take time off from work to make that happen — and please don’t tell me having kids is a “lifestyle choice,” because if men continue to spout that baloney, we may need to start having fewer boys. Payscale minimizes the pay gap by pulling in all workers. When you look at the gap for women with graduate degrees or women later in their careers, the gap is enormous. I also think it’s a bit disingenuous to say that jobs and industries dominated by men… Read more »
Tommy
Guest

Dumbest piece of legislation ever written. Pass a law to appease people who can not effectively negotiate? Waste of time and money. Gives unqualified workers the ability to litigate their way to a paycheck.

Hugh M.
Guest

Contrary to your claim that “The gender pay gap is real”, your research apparently shows that the difference is 3%, which is statistically insignificant.

If you are interested in addressing real gender imbalances, how about the 57% majority of women who are in college or the 100% more funding for breast cancer vs. prostate cancer despite similar death rates?

Abe
Guest
Actually, Hugh, I’m not sure how you’re saying that a 3% gap is “statistically insignificant.” Are you comparing the 3% to a p-value of 5%? If so, you’re doing it wrong. In order to ascertain statistical significance you would need to do a hypothesis test, which (purely from reading this article) is not possible. You’d need the data, and you’d need to run the test and then evaluate the p-value output by the test to see if it met whatever your threshold is for statistical significance (depending on your domain it may be 5% or 10% or even 1%…it all… Read more »
Hugh M.
Guest
Fair enough, Abe. I guess we are both saying that the data here does not support the statement that “The gender pay gap is real”. I invite Pay Scale to publish their methodology and open it up for peer review. As it stands, it apparently is based on this: “Our data scientists applied our proprietary algorithms to more than 1.4 million salary profiles to compare men and women working the same jobs and controlling for factors such as experience, location, hours worked, education, and more to calculate an “apples-to-apples” analysis of pay equity.” The data is not likely to be… Read more »
Average Random Joe
Guest

Perhaps, but it is close enough that such a consideration should be made before stating that it is. We are creating laws and regulations based on a concept that may or may not exist. In fact, I would expect older women to have a larger gap due if the premise of the article is to be remotely believed, meaning that younger women will be narrower if not breaching to the other side. I disagree in assuming the worst in people, especially when you punish them with limitations, restrictions, and regulations.

Average Random Joe
Guest
First, the 3% is statistically significant? Are we going to whine and institute these types of legislation when that becomes flipped the other way, men being paid 97% of women? Second, the premise that the gap will always exist because you anchor at different points is faulty. Current stats are starting to show that young women are actually getting paid higher then their male counterparts. This makes sense, if the equal pay act happened just over 3 decades ago, women back then (the older women) would have been lower and with the actual aggregate gap so close, that means the… Read more »
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