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Citation preview
Donrsquot Ask Donrsquot Tell
Salary History Bans
April 2018
+
April | 2017
+
Cheryl B Pinarchick Esq
617-722-0044
cpinarchickfisherphillipscom
+
Changing Legal LandscapeThe Equal Pay Act has been in place for decades nevertheless the ldquopay gaprdquo persists
+
Changing Legal Landscape
bull States and cities are enacting laws and ordinances to try
to close the ldquopay gaprdquo
bull Result patchwork of local and state laws
+
Compare the EPA and New Laws
bull EPA requires equal pay for ldquoequal workrdquo while many new laws require equal
pay for ldquocomparable workrdquo ndash intended to be a broader definition
bull States are limiting the lawful justifications for paying men and women
differently
bull States are expanding equal pay laws to cover race nationality and other
protected categories of workers
bull Many state laws have pay transparency provisions that make it unlawful for
employers to prohibit employees from discussing or disclosing their pay
+
Compare the EPA and New Laws
bull Many laws and even local ordinances prohibit or limit an employer
from seeking salary history from applicants andor using salary
history in setting compensation
bull Rationale pay discrimination can follow employees from job to job
throughout their careers resulting in a systemic reduction in their
earning power
bull If an employee experiences pay inequality in a prior job disclosing
their past salary when applying for a new job has the potential to
perpetuate the effect of the past discrimination
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
April | 2017
+
Cheryl B Pinarchick Esq
617-722-0044
cpinarchickfisherphillipscom
+
Changing Legal LandscapeThe Equal Pay Act has been in place for decades nevertheless the ldquopay gaprdquo persists
+
Changing Legal Landscape
bull States and cities are enacting laws and ordinances to try
to close the ldquopay gaprdquo
bull Result patchwork of local and state laws
+
Compare the EPA and New Laws
bull EPA requires equal pay for ldquoequal workrdquo while many new laws require equal
pay for ldquocomparable workrdquo ndash intended to be a broader definition
bull States are limiting the lawful justifications for paying men and women
differently
bull States are expanding equal pay laws to cover race nationality and other
protected categories of workers
bull Many state laws have pay transparency provisions that make it unlawful for
employers to prohibit employees from discussing or disclosing their pay
+
Compare the EPA and New Laws
bull Many laws and even local ordinances prohibit or limit an employer
from seeking salary history from applicants andor using salary
history in setting compensation
bull Rationale pay discrimination can follow employees from job to job
throughout their careers resulting in a systemic reduction in their
earning power
bull If an employee experiences pay inequality in a prior job disclosing
their past salary when applying for a new job has the potential to
perpetuate the effect of the past discrimination
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Changing Legal LandscapeThe Equal Pay Act has been in place for decades nevertheless the ldquopay gaprdquo persists
+
Changing Legal Landscape
bull States and cities are enacting laws and ordinances to try
to close the ldquopay gaprdquo
bull Result patchwork of local and state laws
+
Compare the EPA and New Laws
bull EPA requires equal pay for ldquoequal workrdquo while many new laws require equal
pay for ldquocomparable workrdquo ndash intended to be a broader definition
bull States are limiting the lawful justifications for paying men and women
differently
bull States are expanding equal pay laws to cover race nationality and other
protected categories of workers
bull Many state laws have pay transparency provisions that make it unlawful for
employers to prohibit employees from discussing or disclosing their pay
+
Compare the EPA and New Laws
bull Many laws and even local ordinances prohibit or limit an employer
from seeking salary history from applicants andor using salary
history in setting compensation
bull Rationale pay discrimination can follow employees from job to job
throughout their careers resulting in a systemic reduction in their
earning power
bull If an employee experiences pay inequality in a prior job disclosing
their past salary when applying for a new job has the potential to
perpetuate the effect of the past discrimination
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Changing Legal Landscape
bull States and cities are enacting laws and ordinances to try
to close the ldquopay gaprdquo
bull Result patchwork of local and state laws
+
Compare the EPA and New Laws
bull EPA requires equal pay for ldquoequal workrdquo while many new laws require equal
pay for ldquocomparable workrdquo ndash intended to be a broader definition
bull States are limiting the lawful justifications for paying men and women
differently
bull States are expanding equal pay laws to cover race nationality and other
protected categories of workers
bull Many state laws have pay transparency provisions that make it unlawful for
employers to prohibit employees from discussing or disclosing their pay
+
Compare the EPA and New Laws
bull Many laws and even local ordinances prohibit or limit an employer
from seeking salary history from applicants andor using salary
history in setting compensation
bull Rationale pay discrimination can follow employees from job to job
throughout their careers resulting in a systemic reduction in their
earning power
bull If an employee experiences pay inequality in a prior job disclosing
their past salary when applying for a new job has the potential to
perpetuate the effect of the past discrimination
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Compare the EPA and New Laws
bull EPA requires equal pay for ldquoequal workrdquo while many new laws require equal
pay for ldquocomparable workrdquo ndash intended to be a broader definition
bull States are limiting the lawful justifications for paying men and women
differently
bull States are expanding equal pay laws to cover race nationality and other
protected categories of workers
bull Many state laws have pay transparency provisions that make it unlawful for
employers to prohibit employees from discussing or disclosing their pay
+
Compare the EPA and New Laws
bull Many laws and even local ordinances prohibit or limit an employer
from seeking salary history from applicants andor using salary
history in setting compensation
bull Rationale pay discrimination can follow employees from job to job
throughout their careers resulting in a systemic reduction in their
earning power
bull If an employee experiences pay inequality in a prior job disclosing
their past salary when applying for a new job has the potential to
perpetuate the effect of the past discrimination
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Compare the EPA and New Laws
bull Many laws and even local ordinances prohibit or limit an employer
from seeking salary history from applicants andor using salary
history in setting compensation
bull Rationale pay discrimination can follow employees from job to job
throughout their careers resulting in a systemic reduction in their
earning power
bull If an employee experiences pay inequality in a prior job disclosing
their past salary when applying for a new job has the potential to
perpetuate the effect of the past discrimination
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Salary History Bans ndash Effective Dates
o New York (1917)
o New Orleans (12517)
bull Puerto Rico (3817)
bull Oregon (10617)
bull New York City (103117)
bull Delaware (121417)
bull Albany NY (121717)
bull California (1118)
o Pittsburgh (13018)
o New Jersey (2118)
bull San Francisco (7118)
bull Massachusetts (7118)
bull Westchester County NY (7918)
bull Philadelphia (on hold)
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Compliance Challenges
As an increasing number of jurisdictions pass salary history legislation
the compliance challenges for employers become more and more
complicated because each jurisdiction has its own unique set of rules
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Delaware
An employer cannot
bull screen applicants based on their compensation histories including
requiring that an applicantrsquos prior compensation satisfy minimum or
maximum criteria
bull seek the compensation history of an applicant from the applicant or a
current or former employer
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Delaware
An employer can
bull discuss and negotiate compensation expectations provided the
employer does not request or require the applicantrsquos compensation
history
bull seek applicantrsquos compensation history after offer of employment with
terms of compensation is made and accepted for the sole purpose of
confirming compensation history
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Oregon
An employer cannot
bull screen applicants based on their compensation histories
bull seek the compensation history of an applicant from the applicant or a
current or former employer
bull determine compensation for a position based on the current or past
compensation of an applicant
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Oregon
An employer can
bull consider the compensation of a current employee during a transfer
move or hire of the employee to a new position with the same
employer
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
New York City
An employer cannot
bull inquire about the salary history of an applicant for employment
bull rely on the salary history of an applicant in determining the salary
benefits or other compensation for such applicant during the hiring
process
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
New York City
An employer can
bull without inquiring about salary history discuss with the applicant their
compensation expectations including unvested equity or deferred
compensation that an applicant would forfeit by virtue of the applicantrsquos
resignation from their current employer
bull consider salary history in determining compensation for an applicant
and may verify such applicantrsquos salary history if the applicant
voluntarily and without prompting discloses salary history
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Massachusetts
bull Similar to NYC law
bull Nothing in law expressly prohibits an employer from using salary
history when it is voluntarily disclosed
bull However salary history is not a recognized legal justification for pay
disparities between men and women
bull That means that even if an applicant volunteers their salary you canrsquot
use it to justify a pay disparity between the sexes
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Massachusetts
An employer can
bull request written authorization to confirm prior compensation after the
employer makes an offer of employment that includes an amount of
compensation
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Puerto Rico
An employer cannot
bull inquire into an applicantrsquos past salary history unless the applicant
volunteered such information or a salary was already negotiated with
the applicant and set forth in an offer letter in which case an employer
can inquire or confirm salary history
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
California
An employer cannot
bull seek salary history information including compensation and benefits
about an applicant for employment
bull rely on salary history as a factor in determining whether to offer
employment to an applicant or what salary to offer unless the applicant
voluntarily discloses salary information without prompting
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
California
An employer must
bull upon reasonable request provide the pay scale for a position to an applicant
applying for employment
bull An employer can
bull consider or rely on salary history information in determining the salary of an
applicant if the applicant voluntarily discloses salary history information
bull provided however an employer cannot use prior salary history by itself to
justify disparities in compensation
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Salary History under the EPA
Recent landmark decision by the 9th Circuit Court of Appeals
Rizo v Yovino
bull Ruled that employers cannot justify wage differentials between men
and women performing ldquoequal workrdquo by relying on prior salary
bull Cited to cases in the 2nd Circuit 6th Circuit 10th Circuit and 11th Circuit
as interpreting the EPA in a somewhat similar manner
bull Noted that the 7th Circuit and 8th Circuit have shied away from issuing
such a broad pronouncement
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Implications of Rizo
bull Salary history may or may not be interpreted as a lawful justification for
disparities in pay between men and women performing ldquoequal workrdquo
depending upon which jurisdiction yoursquore in
bull Calls into question whether employers should rely upon salary history
in making compensation decisions even where asking for salary
history is not prohibited
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
+
Recommended Actions
bull Remove salary history questions from application materials
bull Remove salary history questions from background checks or
verification inquiries
bull Train anyone involved in interviewing candidates
bull Determine how company will inquire about and document candidatersquos
salary expectations
bull Implement process for documenting voluntary disclosures
bull Confirm compliance by external recruiters or other third party services
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
wwwxperthrcom 855-XPERTHRsalesxperthrcom XpertHR USA XpertHR_USA
Thank You
Visit wwwxperthrcom
wwwxperthrcomblog
