8 States Ban Queries On Worker Pay

Published: 7/1/2018 12:20:57 AM
Modified: 7/1/2018 12:20:59 AM

Next time you get asked, “What’s your current salary?” in a job interview, check your ZIP code. It is now illegal for employers to ask job applicants about their previous salaries in at least eight states and eight counties and cities.

The laws and ordinances passed in the past two years are aimed at narrowing the persistent pay gap between men and women. A prospective employer who knows your current salary can offer you a pay bump based on that figure — or keep your new salary low. If you’re a woman, you likely make less in your current job than a male recruit with the same skills and experience.

An employer can offer a woman a pay bump for a new job and still pay her less than a man.

“We’re seeing tremendous momentum behind the idea of banning questions about prior salary,” said Vicki Shabo, vice president of the National Partnership for Women and Families, which advocates state pay-history bans. “It’s a specific, very actionable thing that can be put in place in a proactive way ... and helps to stop the cycle of systemic wage disparities.”

Prohibiting salary-history questions probably benefits managerial and professional job candidates the most, Shabo said. But it also will benefit people who might have moved from a low-cost region to a more competitive market, or who took time off from work. “That’s a lot of people in an era where caregiving is common, where migration is common.”

Even proponents of eliminating the question, however, aren’t sure whether wage-history bans will help close the gender pay gap. Business groups including chambers of commerce and the Society for Human Resource Management oppose the bans. Some economists think it could backfire on the women it is supposed to help. And two states, Wisconsin and Michigan, have enacted laws designed to pre-empt salary-history bans.

Across all occupations, women working full time earn about 82 percent of what men do, according to the Institute for Women’s Policy Research, a social science research institute.

It’s a disadvantage that follows women throughout their careers, said Mary Pollock, a government relations coordinator for the Michigan chapter of the American Association of University Women. They’re not basing starting salaries on experience, she said.

“A lot of them want to find out the cheapest they can get an employee for, so they offer a bit more than the person is currently making,” Pollock said. And getting a lowball starting salary “goes right into how much Social Security you have, and how much 401(k) you have, and how much pension you have.”

Causes of the gender pay gap range from discrimination to women taking time off from work for caregiving and raising children, and negotiating less aggressively for raises. Research shows that women who negotiate for raises could be punished for it in ways that men aren’t.

“There are a lot of different factors that go into the gender pay gap and there are a lot of different remedies, but this is one important piece,” said Kate Nielson, state policy counsel for the American Association of University Women. “People are sick of being paid unfairly. The ban on salary history is something incredibly tangible.”

Massachusetts enacted the first salary-history ban in 2016. Oregon, California, New York, Delaware, Vermont and Connecticut followed, as has Puerto Rico. New Jersey bans public employers from asking about previous salaries. The Hawaii Legislature passed a ban proposal and sent it to the governor. Republican Gov. Bruce Rauner of Illinois vetoed a ban last year, but the Legislature revived similar legislation this year.

On the flip side, Michigan and Wisconsin have enacted laws blocking city and county bans, as part of broader legislation seeking to pre-empt employer mandates such as paid sick leave.

To its proponents, a ban on asking the previous salary question makes intuitive sense.

“So many of us have been in the position of having to respond to that question,” said Andrea Johnson, senior counsel for state policy at the National Women’s Law Center. “It’s also an easy fix. It’s not that hard for employers to stop having this information and using it in the hiring process.”

Barring wage-history questions is one proposal seeking to narrow the gender wage gap. Others include requiring paid sick leave and family leave. Because salary-history bans incur no public costs, they’re easier to get enacted by state legislatures, Johnson said. But it’s too soon to know if the laws will have an impact.

“The hope is that it will focus companies and line managers on having more explicit pay policies and starting to rely on people’s skills and experience, rather than their prior salary,” said Ariane Hegewisch, the program director for employment and earnings at the women’s policy research institute. “Because it hasn’t been implemented, we cannot say with certainty that it has been happening. But that is the hope.”

Cities including Pittsburgh, New Orleans, Chicago and San Francisco have adopted ordinances that prohibit asking new city workers for their salary histories. Despite Wisconsin’s preemption of salary-history bans for private employers, Milwaukee last month adopted an ordinance prohibiting city agencies from asking applicants about salary history.

“It’s important to send a message to the private sector,” said Tony Zielinski, the alderman who sponsored the ordinance. “Success begets success. Eventually this will spill over into the private sector.”

It may end up in court first. The wage-history argument got a boost when a federal appeals court ruled in favor of a math teacher, Aileen Rizo, who sued the Fresno, Calif., school district for paying her a lower starting salary than her male colleagues based on her previous salary in a different state.

Prior salary is not a justification for paying women less than their male counterparts, the court ruled. Fresno officials said they would appeal the April decision to the U.S. Supreme Court.

Wage-history prohibitions also have been challenged in Philadelphia, which last year adopted a salary-history ban for private employers and public agencies.

A dozen of Philadelphia’s largest employers and the local Chamber of Commerce sued, saying the bill infringed on First Amendment rights. A federal judge agreed, saying the law infringed on employers’ free-speech rights, but also ruled that companies could not rely on previous salaries to set pay. The city is appealing.

But a ban on asking a job applicant’s previous salary could backfire, said Jennifer Doleac, an economist at the University of Texas A&M who has studied “ban the box” laws that forbid employers from asking about applicants’ criminal history.

Because of ban the box laws, Doleac found, employers interviewed fewer African-American and Hispanic men, excluding demographic groups they believed likely to have criminal records.

Without information on pay history, employers will still try to offer women lower salaries, Doleac said. “It’s a pretty good guess that if you’re offering a job to a woman, she’s probably being paid less than men, so you might as well lowball her.”

“Women who are making a better than average salary will have to negotiate all over again,” she said.

“It winds up hurting members of the group who don’t have the problem and doesn’t help members of the group who do have the problem.”

In California, the Chamber of Commerce argued businesses need salary information to keep their own pay scales at market rates.

Business groups in Michigan and Wisconsin lobbied for the state laws preventing municipalities from imposing bans.

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