In the past few years, there has been a significant focus by lawmakers on closing the "gender gap" in the pay earned by men and women. Although state and federal law have prohibited gender-based discrimination in pay for many years, the new focus has been upon salary history. Advocates claim that basing an applicant's salary upon his or her prior earnings perpetuates pay discrimination and leads to women being systematically paid less than men.
In order to address this disparity, state and local legislatures across the country are considering banning private employers from asking applicants for employment about their salary history. Massachusetts recently became the first state in the nation to enact such a law, and New York City and Philadelphia have followed suit (although a legal challenge has temporarily blocked the Philadelphia statute from going into effect). Similar bills are pending in state and local legislatures across the country. Although a bill has been introduced in Congress, its chances of passage seem small at the current time.
Employers who operate in multiple jurisdictions will face difficulties in compliance with such laws, much as they did with the "ban the box" movement several years ago. While there are very few jurisdictions with such laws on the books at the current time, there is significant momentum in many jurisdictions, and employers should expect more laws to be passed in the coming years. Employers will need to monitor state and even local laws that could impact their recruiting and hiring processes. Since most employers, at a minimum, ask applicants for current salary or salary history on their application forms, employers will need to decide what changes will need to be made to their processes and forms to comply with the anticipated patchwork of state and local laws.
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