Last month, Massachusetts became the first state to pass a law making it illegal for an employer to ask about an employee’s salary history in a job interview. It may not be the last. Bills have been introduced into the legislatures of New York and California that would ban employers from asking employees about salary history during an interview. Moreover, three members of Congress recently announced their intention to introduce a bill that would ban employers nationwide from asking about salary history in job interviews.
Outside of Massachusetts, it is not illegal for employers to ask a candidate for his or her salary information during a job interview. If the candidate fails to provide this information, the employer can choose not to hire him or her.
Actually verifying salary information may be difficult, however. The IRS keeps tax returns confidential, so it will not release a job applicant’s W-2s to a prospective employer. While potential employers can request salary information from past employers, actually getting them to do this might be difficult. Therefore, the only realistic source of learning about an applicant’s salary history comes from the applicant. An employer can require an applicant to provide W-2s. If the applicant does not have them, then the employer will likely have to rely on what the applicant claims his or her prior salary history to have been.
While an employer may ask an applicant about his or her salary history, the employer cannot forbid employees from discussing salary history with one another. This activity is protected by the National Labor Relations Act, the law allowing employees to, among other things, form unions.
Ultimately, employers should take care to ensure that they are not asking illegal questions during job interviews. Click here to read our blog post discussing the questions that employers can and cannot ask during job interviews. Additionally, employers may want to consult with an attorney to determine whether specific questions that they plan to ask during an interview are illegal.