Sep 10, 2021 • Brette Sember, J.D.; FINDLAW/BLOGS/LAW AND DAILY LIFE

Can Employers Legally Ask About Your Current or Previous Salary?

The average person will have 12 jobs in their lifetime, a significant change from years ago when people stayed in one job their entire adult life. For many people, switching employers may be the fastest way to increase their earnings.

When you are looking for a new job, you may wonder if a prospective employer can ask you about your salary at your current or previous jobs.

This can be of particular concern with the rise in remote jobs. Employers may feel they can pay less than your previous in-person position if you will be working from home.

The Problem with Salary Questions

Asking for a salary history might seem like an innocuous, and even practical, question. But this can actually lead to pay discrimination, making it impossible to ever earn what you are worth, since your pay is typically based on your last salary.

If you list your previous salaries, it can drastically reduce your bargaining position in wage negotiations. If you refuse to offer numbers, however, you could lose out on a great job opportunity.

This is particularly an issue for women, who on average earn 84 cents on the dollar compared to men.

Connecticut AFL-CIO President Sal Luciano recently told Connecticut lawmakers, “Using salary history to evaluate and compare applicants’ job responsibilities and achievements assumes that prior salaries are an accurate measure of an applicant’s experience and achievements, and not the product of discrimination or gender bias.”

Can Employers Ask About Salary?

Employers are free to ask you about your current and past salaries under federal law. However, many states have their own laws about this question.

California has one of the strongest laws. Private and public employers cannot ask your salary history, and even if they have the information, they cannot use it in setting your pay. New York has a similar law in place.

Other states, such as Michigan, allow employers to ask, but not until after making a conditional job offer. This only applies to state agencies, however. The state actually has a law stating that the state cannot prohibit employers from asking about salary history.

Some cities have passed similar laws, such as Toledo, Ohio, which does not allow employers to use this information to screen applicants, offer employment, or set salaries.

Some states remain silent, permitting this type of question, such as Texas, West Virginia, Tennessee, and New Mexico.

Should You Disclose a Past Salary?

Before you apply for a new job, find out what your state laws are about salary history. Even if employers are permitted to ask, you are not required to answer. You should weigh the repercussions involved with refusing to answer (not getting the job) against the possible salary discrimination you could face if you do provide the information.

One way employers get around these legal hurdles is to ask what your salary expectations are, forcing you to name your salary range. If you have a history of unfairly low wages, it can be challenging to even know what to ask for.

The bottom line is this: Don’t answer a salary history question if your state or city prohibits employers from asking and tread carefully otherwise. It’s better to try to get the employer to make an offer before you disclose any wage information.

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