Is it Legal to Ask About Salary History?

Is it Legal to Ask About Salary History?

Candidates often struggle with the dreaded question: "How much did you make in your last job?" There never seems to be a right answer. If you respond honestly, you might price yourself out of an opportunity you really want despite the lower salary or, on the opposite end of the scale, receive an offer less than what the potential employer was willing to pay for the position. If you fudge your answer, you risk being caught in a lie, and either are dropped from contention for the job or are terminated if hired.

Lawmakers in some localities spare job seekers this misery by banning the question altogether. Massachusetts adopted a salary history ban last year. In 2017, California, Oregon, Delaware, and Puerto Rico followed suit, along with New York, San Francisco, Pittsburgh, and New Orleans. Philadelphia's ban is on hold pending a legal challenge. Legislatures in New Jersey and Illinois passed similar laws, which were vetoed by their governors. The laws cover not only prospective employers, but also prohibit outside recruiters from asking about salary history, as well. The ban also covers questions regarding bonuses, benefits, and other non-base-salary elements of the compensation package.

Salary ban legislation aims to prevent employers from basing a prospective employee’s compensation on previous pay history and, instead, compensate based on the value of the work. This legislative trend is part of an effort to combat wage discrimination and the gender pay gap, where women still earn only 80% of their male counterparts’ compensation. The theory is that salary history questions may cause these inequalities to persist and even increase over time.

Salary ban laws still allow questions about your target compensation or how much you want to make in your next position. They also allow prospective employers and outside recruiters to state the expected salary range for the opening and ask whether that is acceptable to you. If improperly asked about your salary history, however, you should ask, in return, for the range the employer expects to pay to fill the position. You can state your salary expectations and offer to discuss your compensation based on the requirements and responsibilities of the position for which you’re applying and your skills and ability to do the job well. Of course, you may voluntarily tell an employer your salary history, but you can’t be prompted, even indirectly.

Since not all jurisdictions currently ban salary questions, the issue is complicated for employers with multiple locations or who recruit candidates from other geographic areas. The ban is spreading across the country, however, so most employment lawyers recommend that all employers, regardless of location, remove the question from job applications, interviews, and discussions with job seekers.

The issue is murkier for law firms recruiting lateral partner candidates. Although most salary ban laws do not apply to equity partner candidates, the partner may move from an equity position to a non-equity position, or vice versa. Furthermore, the question is not settled whether any particular attorney is a true partner or a de facto employee, given the current reality of law firm economics and management which varies from firm to firm. The conservative strategy is for all law firms to eliminate all compensation history questions from the LPQ (Lateral Partner Questionnaire) and related due diligence. Prospective employers still can ask about objective indicators of your work productivity in your current or prior jobs, such as revenue, hours billed, profits generated, or book of business.

So, not all of those uncomfortable job interview questions are going away any time soon.

Valerie Fontaine

Valerie Fontaine

Valerie A. Fontaine earned her JD from UC Hastings College of Law and her BA, Phi Beta Kappa and magna cum laude, from UCLA. She was on the Editorial Board of COMM/ENT, a Journal of Communications and Entertainment Law. Valerie practiced law with a prominent Los Angeles law firm and entered the legal search profession in 1981. Valerie serves as Secretary to the Board of Directors of the National Association of Legal Search Consultants (NALSC).
Valerie Fontaine

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