Maine Legislature Passes Salary History Ban

Maine lawmakers have joined the rapidly increasing number of state and local governments that have implemented a ban on employers asking job candidates about their prior salary history.

“An Act Regarding Pay Equity” was approved in the state’s House of Representatives on April 2 with a vote of 86-54 and the same day in the state Senate with a vote of 22-11. The count generally fell along party lines with Democrats supporting the proposed legislation and Republicans generally opposing it. The Portland Press Herald has reported that Democratic Gov. Janet T. Mills is expected to sign the bill.

The law is expected to go into effect in October of this year.  

What’s in the New Maine Salary History Ban?

The new legislation amends the existing Maine Human Rights Act. It adds language stating that evidence of discrimination can include an employer seeking information about a prospective employee’s previous salary history prior to the job offer is extended.

The new law also broadens a provision in the state’s equal pay law, forbidding employers from preventing employees from discussing or disclosing other employees’ wages. It makes such preventions a violation of the Maine Human Rights Act as well.

Employers or employment agencies are allowed to seek compensation history of an employee or prospective employee after an offer of employment including all terms of compensation has been made. Employers may also confirm a prospective employee’s compensation history if that compensation history was voluntarily disclosed.

Maine’s Chamber of Commerce opposes the new measure. Explaining in a phone interview that the Chamber opposed the bill in committee, executive vice president Peter Gore, said many businesses have less than 10 employees and described the bill as a “trap” for them because they don’t have an HR department to advise them. He said that as the bill is currently written, if employers go on a site like Glassdoor to look for salary information, that can be used as evidence of salary discrimination. He also stated that the law doesn’t set a cap on compensatory damages.

State and local governments forbid salary history questions

Over the last couple of years, states and local governments have taken steps to forbid employers from asking for prior salary history, acting on the belief that doing so perpetuates wage disparities between men and women and minorities.

A report from the National Partnership for Women & Families has estimated that full-time women workers in Maine were paid 82 cents for every $1 paid to a man working full-time, according to the Portland Press Herald.

Last month, the Cincinnati City Council voted to forbid medium and large employers from asking job applicants for their salary history. That legislation, like so many others, is aimed at eliminating the longstanding pay gap between the wages and men and women and minorities. That ban goes into effect in March 2020.

In addition to the Cincinnati and the Maine salary history bans, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Massachusetts, New Jersey, New York state, Oregon, and Pennsylvania already have salary history bans on the books, but some of those apply only to government employers. Several local governments, including Albany County, Atlanta, Louisville, KY; New York City, San Francisco, New Orleans, and Pittsburgh also passed their own bans, but some of those are only aimed at city government employers.

Salary history bans are also under consideration in several other states.

Pushback against salary history bans

Some states, however, are going the other way, instituting what some have called “bans on bans.” In moves that are favorable to employers, Michigan and Wisconsin lawmakers recently passed laws prohibiting bans on the salary question.

Philadelphia, Pennsylvania’s salary history ban is under court review. Philadelphia’s Chamber of Commerce took the ban to court. A federal trial court ruled in 2018 that the ordinance prohibition on employer inquiries about an employee’s prior salary history violated the First Amendment, but the judge upheld the ordinance’s prohibition against the use of that information to set pay. That decision is under appeal.

No nationwide salary history ban

There is no nationwide salary history ban in effect, but there is a bill on Capitol Hill that would do just that. The Paycheck Fairness Act was approved on March 27 by the Democratic-controlled U.S. House of Representatives. A companion bill has been introduced in the Republican-controlled U.S. Senate but that bill has yet to be scheduled for subcommittee or committee action.