This month, Washington State became the ninth state to prohibit private employers from seeking the wage or salary history of job applicants. Laws barring the use of salary history from pre-employment consideration are intended to remedy persistent earning inequalities between men and women. The reasoning is that historically, women have been offered lower initial pay than men for the same jobs, even when they are equally qualified for the job. Women remain at a disadvantage when they carry their inferior salary histories forward from job to job, perpetuating the cycle of wage disparity between the sexes. By preventing salary history from influencing an employee’s earning capability, Washington State has stepped up its efforts to ensure that all workers are paid a fair wage.
2018 Equal Pay and Opportunities Act
Washington’s salary history ban (HB 1696), which goes into effect on July 27, 2019, expands on the state’s equal pay law, known as the Equal Pay and Opportunities Act (EPOA), that went into effect last year. The EPOA requires pay differentials between “similarly employed” employees of a different gender to be based in good faith on bona fide factors other than gender that are job-related, consistent with business necessity, and account for the entire pay differential. Bona fide factors include education, training, experience, seniority, merit systems or regional differences in pay. The EPOA makes it clear that an employee’s prior salary history cannot be used to justify a wage differential. However, when it was first enacted, the EPOA did not prohibit employers from inquiring about and using salary history to screen applicants or determine an employee’s compensation.
2019 EPOA Salary History Amendment
This year, the State Legislature, finding that the practice of inquiring about salary history contributes to pay inequality, decided to follow the lead of other states which prohibit the use of salary history in making pre-employment decisions. What lawmakers passed is an amendment to the EPOA which prohibits employers from seeking the wage or salary history of an applicant from either the applicant or a current or former employer. The amended EPOA does not eliminate salary history from pre-employment consideration entirely. An employer may confirm an applicant’s wage or salary history:
- if the applicant has voluntarily disclosed wage or salary history information; or
- after the employer has negotiated and made an offer of employment with compensation.
The trade-off is that some employers will now be required to disclose how much the position pays to applicants. The new pay disclosure requirement applies to employers with 15 or more employees and arises once the employer has made the initial job offer. For external hires, upon request of an applicant, the employer must provide the minimum wage or salary for the position. For internal transfers or promotions, upon request of an employee, the employer must provide the wage scale or salary range for the position. It could be significant that there is nothing in the EPOA to preclude pre-employment discussion of an applicant’s salary expectations for the position.
Salary History & Wage Equality Moving Forward
Although equal pay laws vary from state to state, every year states are doing more to achieve wage equality. Most states prohibit wage discrimination based on sex and require wage differences between similarly employed men and women to be based on bona fide occupational qualifications. In an increasing number of states, employers may not forbid employees from disclosing or discussing wages with other employees. The states most progressive in this area – California, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Oregon, Vermont, Washington and Puerto Rico – prohibit the use of salary history in making hiring and compensation decisions. Negotiating salary is never easy but when salary history is removed from consideration qualified applicants can expect fair consideration and compensation for jobs they apply for.
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