Washington state employers will not be allowed to ask job applicants for their salary history as of July 28, 2019. The Evergreen state is the 17th state to put some type of salary history ban in place. The ban is aimed at eliminating the longstanding gap in wages between men and women.
Women on average made 80 cents for every dollar their male counterparts made in 2017, according to a study by the American Association of University Women. The Seattle Times reported in 2018 that women in Washington state made 78 cents per dollar of men’s earnings.
The Washington legislature noted in the bill, that “the legislature intends to follow multiple other states and take the additional step towards gender equality by prohibiting an employer from seeking the wage or salary history of an applicant for employment in certain circumstances.”
Democratic Governor Jay Inslee signed the “Washington Equal Pay and Opportunities Act” on May 9.
Legal Requirements of the Salary History Ban
All employers are affected.
An employer may not:
- Seek the wage or salary history of an applicant for employment from the applicant or a current or former employer; or
- Require that an applicant’s prior wage or salary history meet certain criteria.
However, an employer may confirm an applicant’s wage or salary history if (a) the applicant has voluntarily disclosed the applicant’s wage or salary history or (b) after the employer has negotiated and made an offer of employment with compensation to the applicant.
In addition, employers with 15 or more employees, must provide the minimum salary for a position after extending a job offer to an applicant upon the applicant’s request. Such employers must also provide the wage scale or salary range for a position when requested to do so by a current employee who has been offered an internal transfer or a promotion. If no such pay scale exists, then the employer must provide the minimum wage or salary expectation that was set by the employer before posting the position.
So, the salary history ban applies to all employers but the requirement to disclose a minimum salary only applies to employers with 15 or more employees.
Some speculate that the Washington law allows employers to discuss salary expectations but such a move should be discussed with legal counsel. Many companies have chosen to eliminate requesting salary history during the application process, electing to publish the salary range for open positions.
Washington Salary History Ban Includes Right of Action
The new Washington state law allows individuals to bring a private right of action for actual or statutory damages up to $5,000, interest, costs and attorneys’ fees. The court may also order reinstatement and injunctive relief.
The state’s Department of Labor and Industries has authority to investigate and enforce claims.
Pay Equity Act Signed Last Year
This isn’t the first time in recent times that Washington lawmakers have made changes to the state’s laws on equal pay.
The Washington state pay equity law was amended last year. Originally put on the book in 1943, it made wage discrimination based on gender a misdemeanor. The 2018 amendment prohibited employers from justifying differences in pay by pointing to differences in prior salary. Now, employers are not allowed to collect that information.
Other Salary History Bans
Salary history bans are increasingly common and are now in place in some form in 17 states, including Washington state, Oregon and California, as well as 14 local jurisdictions. Some of the bans only apply to government employers.
The bans generally prohibit employers from requesting salary history information from job applicants. Some bans go even further and forbid employers from relying on prior pay history when determining compensation even if the information has been volunteered or discovered during the hiring process. Proponents of the bans argue that employer use of prior salary history perpetuates wage inequities for women and minorities and perpetuates lower pay for workers who have had a lower paying job in their past.
Earlier this year, Cincinnati, Maine and Kansas City, Missouri also passed bans on employers asking job applicants for prior salary history information.
The Cincinnati City Council voted on March 13 to forbid employers from asking job applicants for their salary history. The ordinance applies to employers located within Cincinnati’s city limits that have 15 or more employees and takes effect in March 2020. Employers are not allowed to ask job applicants about salary history, to screen job applicants based on prior salary history, to rely on salary history to make hiring decisions or set an applicant’s compensation for a job; or refuse to hire a job applicant for not disclosing their salary. However, the ordinance does allow employers to ask job applicants for their expectations regarding salary, benefits and other compensation. That ban goes into effect in March 2020.
Maine’s legislature passed a salary history ban in April. The new legislation amends the existing Maine Human Rights Act, adding language stating that evidence of discrimination can include an employer seeking information about a prospective employee’s previous salary history. Employers or employment agencies are allowed to seek compensation history of an employee or prospective employee after an offer of employment has been made. Employers may also confirm a prospective employee’s compensation history if that compensation history was voluntarily disclosed.
Kansas City, Missouri passed a salary history ban in June. The ordinance specifies where salary history inquiries are banned throughout the hiring process. Employers may not ask for salary history on any forms of applications for employment, either oral, written or online; screen candidates for interview or potential employment based on their past salary history, or refuse to hire a candidate or retaliate against them in another way if they do not disclose their salary history.
Salary history bans are also under consideration in several other states.
But there’s been a backlash. In employer-friendly moves, Michigan and Wisconsin lawmakers recently passed laws that “banned the bans.” In June 2018, Michigan passed a law forbidding local governments from regulating the information that employers can require, request or exclude on job applications or during the hiring process that went into effect in January 2019. In April of 2018, Wisconsin passed a similar law, stating local governments could not pass legislation that prohibited employers from asking about salary history.
There is no nationwide salary history ban in effect; however, Capitol Hill lawmakers are considering a bill that would create such a prohibition. “The Paycheck Fairness Act” would, among other things, ban employers from seeking a job candidate’s salary history. The bill 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.
This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.