Why Asking About Salary History Is Risky Anywhere

By Joseph Kroeger and Audrey Roberts (November 29, 2017, 11:28 AM EST) -- There has been significant attention around the new laws and ordinances that prohibit employers from asking job applicants about their salary history in California, Delaware, Massachusetts, Oregon, New York City, Philadelphia and Puerto Rico. Are employers outside of these jurisdictions free to ask for salary history information of applicants without risk? Hardly. The premise behind these "no-ask" laws, supported by social science, is that asking for salary history reinforces and perpetuates the gender pay gap. And that is exactly the premise behind a disparate impact claim under Title VII, as well as an Equal Pay Act claim. In the face of all of this national attention, an employer asking for salary history information — even outside a "no-ask" jurisdiction — faces the risk that the U.S. Equal Employment Opportunity Commission or a plaintiffs attorney may pursue a claim under Title VII or the Equal Pay Act — and would likely do so under a pattern-and-practice or class action theory. In this article, we suggest that employers consider some less risky alternatives to asking employees about prior salary history, no matter what jurisdiction you operate in....

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