the first state has made it illegal to ask about salary history

by Alison Green on August 8, 2016

Job seekers in Massachusetts will no longer have to disclose their salary history to prospective employers in order to be considered for a job, thanks to a new pay equity law signed this week. The law, which goes into effect in July 2018, makes it illegal for employers to ask job applicants what they’ve earned in the past and makes Massachusetts the first state to ban the practice.

This step is a victory for job seekers, who have long been put at a disadvantage by employers who insist on knowing their past salary history. Employers commonly base salary offers on the information, which has meant that people who have been earning below-market wages are more likely to continue to be underpaid – which has historically been a particular issue for women, who are statistically likely to be paid less than their male counterparts for the same work.

“The prohibition is designed to stop perpetuating pay inequality from employer to employer when employers offer to pay women applicants less than their male counterparts because the men were paid more at the last employer,” says Amanda Marie Baer, an employment lawyer at Mirick, O’Connell, DeMallie & Lougee, LLP in Massachusetts. “For example, if a company is hiring two accountants, Pam and Paul, and knows their respective salary histories, it may be inclined to offer Pam $80,000 because she was paid $60,000 by her last employer, while offering Paul $90,000 because he was paid $70,000 by his last employer – resulting in a $10,000 pay gap. If the company does not know Pam and Paul’s salary histories, it may offer an equal salary of $85,000 to both.”

Companies that do this often assert that salary offers pegged to a candidate’s previous pay are generous increases, even when the offer ends up causing this kind of gender gap or results in below-market pay.

Of course, employers who ask about salary history often claim that knowing how much a candidate earned in the past helps them understand how other companies have valued that person’s work. But employers should be able to determine a new hire’s value themselves, based on the person’s experience, accomplishments, skills and track record, as well as the responsibilities they’ll be assuming in the new role. Plenty of companies don’t request salary history and still manage to figure out what a job or a new hire is worth to them. In fact, a company that doesn’t know what a position is worth is a company that hasn’t done sufficient planning and analysis before advertising a job opening.

But while this new law is great for job seekers in Massachusetts, what can you do if you live in any of the other 49 states and thus are still subject to intrusive questions about past earnings from employers?

The best thing that you can do when employers ask for your salary history to answer the question they should have asked – which is about what salary range you’re seeking now. So for example, you might say, “I’m looking for $60,000 to $70,000.” In many cases (more than you might expect!) the person you’re talking to will accept this answer and move on with the conversation. But if the interviewer insists on learning what you’ve made previously, you can try being more direct about the fact that you don’t care to share that private information. You can try saying, “My previous employers have considered their salary structure confidential, but I’m looking for a range of X to Y” or “I’ve always kept that confidential, but I’m seeking a range of X to Y.” Some interviewers will accept that, and others won’t. If they don’t, at that point you’ll need to decide if you’re willing to hold firm and risk shutting down the process or not.

And if you do get pressured into disclosing your salary history and you worry that it will be used to lowball you at the offer stage, keep in mind that you can contextualize the salary information for your interviewer. For example, you might note that your most current salary is under-market and is the primary reason that you’re looking at other organizations and that you wouldn’t consider changing jobs for less than a certain salary amount.

And meanwhile, keep an eye on Massachusetts’ law. It may be the first in a trend that could spread to your state.

I originally published this at U.S. News & World Report.

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{ 225 comments }

{ 225 comments… read them below }

  1. Always Anon*

    I really hope that this is the start of a new trend. Requiring a salary history hurts people who are underpaid and it hurts those people who are overpaid and willing to take a pay cut. While I wish all employers were required to post a salary range for a position, I think this is a critical first step. Now I just hope that it’s a trend that gets spread to the other 49 states.

    2. mazzy*

      I’ve seen it hurt but also help people so I’m middle of the road. I’m not seeing it as a big victory.

      But IME it will help most people who were paid OK but working with coworkers who used to be overpaid or just paid a lot because maybe they did a lot in their past job, but not at the current one.

      In other words, where there is a disparity but not necessarily anyone getting underpaid.

      1. Chriama*

        I’m skeptical that this practice specifically helps anyone. For example, if you’re a good hiring manager and see that someone was underpaid, you’ll offer them a fair salary. But whether or not you knew that information you would have offered them a decent salary so it’s not really relevant.

        1. mazzy*

          That has been my experience as well. No one has been lowballed because of their previous salary, which is why I’m curious how this will play out. In my experience it would have been useful more for those hires who were at the top end of the pay range in their previous job, because they’d enter at the upper range in my company, earning more than trained and productive existing employees. So everyone was getting paid well, just one or too people were being paid too much. Maybe this new law will keep them from getting hired?

          1. LBK*

            No one has been lowballed because of their previous salary, which is why I’m curious how this will play out.

            Is this supposed to be a general statement or specific to your company/history? Because there’s no way in hell that’s true across the board.

          2. Chriama*

            I think we’re talking at cross purposes. You stated that you’ve seen it hurt but also help people to allow employers to require salary history. I disagree that this has ever helped anyone in a way that they wouldn’t be helped by keeping that information private, which is what my comment was trying to address. If you’re a good manager, you’re going to pay a fair salary regardless of whether or not you know what the previous salary was. But not everyone is a good manager. That’s why we have minimum wage laws, discrimination laws, break time laws, and more. So if you’re a good manager you have nothing to worry about, and if you have something to worry about then it means you were doing something wrong.

          3. KEM11088*

            Not true. I was recently lowballed with an offer because my salary history was required- and I was already making 20k less than the average for my job locally. They purposely use this to not pay what people are worth, but what they can get away with.

        2. neverjaunty*

          Have you considered the law was passed because not all hiring managers are “good”, and not all companies are interested in paying a fair wage as opposed to the lowest amount they believe will hire and retain the employee?

          1. AD*

            Exactly! I’m not sure what there is to debate in this situation. Isn’t this good news, for all concerned?

        3. FC*

          Yes and no.

          At my previous place of employment, I had a fabulous, extremely fair individual as the hiring manager and he wanted to bring me on for a higher amount but HR refused based on my salary history. My previous employer was a non-profit organization where everyone on the very small staff was not paid particularly well.

          So while my “good hiring manager” offered me a “fair salary”, HR stepped in and brought me in lower solely due to my salary history.

      2. Mabel*

        If job seekers think it is to their benefit to tell interviewers their current salary, they can do that. The new law will prohibit employers from asking applicants for this information.

        1. designbot*

          This! I’ve absolutely used current salary as a bargaining tool (I need to to meet or exceed this in order to even consider this offer, because this is what I’m making currently). AND I’ve had to be defensive by saying, well I make this but that is a big part of the reason I’m considering moving on.

        2. Not the Droid You are Looking For*

          This. It’s one thing to use my current salary as a negotiating tool, but it’s an entirely other thing for my pay at a new job to be based on my current pay.

      3. Jesmlet*

        I think it’s meant to help with the pay gap between men and women. If a woman is underpaid in one job, it’s easier for the next employer to justify underpaying her if they can base it off of previous pay history. This makes it easier for employees to be paid what they’re worth and not what they used to be worth.

        1. LBK*

          Yes, that was expressly given as part of the purpose of the law. The same law includes further gender-related pay protections – for example, if your justification for paying a man more than a woman to do the same work revolves around seniority, you’re now legally required to include time that a woman is out on maternity leave in her seniority calculation. I think steps like that are so important because they more effectively address the factors that contribute to the wage gap (ie women essentially being penalized for having children because it puts them out of work at a disproportionate rate to men).

          1. doreen*

            About the requirement that time on maternity leave counts toward seniority- is there any limitation on that? Because I know there are some jobs* where you can take a very long unpaid maternity/child care leave- and by long, I mean three or four years. It seems to me that requiring all of that time to count towards seniority would be tend to cause employers to limit those long leaves.

            * They tend to be unionized jobs with enough hiring going on every year to allow for this. For example, if a teacher takes a four year child care leave , it doesn’t mean the class doesn’t have a teacher for four years. It means that when that teacher returns four years later, he or she replaces another teacher who is going out on leave or retiring.

            1. Honeybee*

              I can’t yet find the text of the new law, but I think that maternity leaves of 3-4 years (or really, of anything longer than one year) in the U.S. are so uncommon that it makes more sense to have this as a blanket rule than it does to try to work in exceptions.

        3. Slippy*

          I believe it is also meant to help people that got/get jobs during times of economic downturn. Just because you had to take a low offer to keep food on the table or current on student loans should not doom you to below market rates.

          Also if most employers get in the habit of posting salary ranges (yeah it is a stretch, I know) then it can help new/returning entrants to the workforce who may not have a good idea of the value of the position.

          1. BananaPants*

            I so hope that this is the case. My husband had two low-paying jobs to keep food on the table during the recession and following years – why should he be stuck being underpaid forever because of crappy luck in layoffs?

      4. Florida*

        If you think it will help you, it is still legal to voluntarily reveal your salary.

        “What salary where you looking for?”
        “Well, I’m currently making $X, so I’d like to make $Y.”

        Note: I’m not necessarily recommending that you answer this way. Just pointing out that if you think if you think revealing your salary in the past has helped you, you still have the option to do it.

    3. Rachael*

      It also protects when people are overpaid and are fine with taking a lower salary at another employer. I worked at a bank for over ten years and I knew that I was paid way above market due to salary raises during layoffs and upheaval (they wanted to keep the employees they had left). When I was laid off of that job it was really hard to find an employer that wasn’t intimidated by my salary and they didn’t care that I was well aware of the paycut that I would need to take. Looking back it would have been much easier for them to ask what I was looking for instead of demanding what my current salary was.

    4. -ZG*

      Based on reporting, the law will not be very helpful.
      Employers will just require “pay expectations” instead of History.
      This sounds like a useless compromise legislation that appears to accomplish something but really accomplishes far less than the appearance.
      A more useful law would require companies publish reasonable ranges for job postings, at least for jobs below the senior executive level.

      1. Alix*

        Yeah, but pay expectations are something you can set, not something determined by your past – and it’s something that’s always been in play whenever salary negotiations were on the table. It also cuts both ways, as Rachael above you points out – if I’m transitioning to a new job that I know has lower pay and I’m fine with that, I can give a prospective employer a lower expectation and not have them think I won’t be satisfied based on past pay history.

        It’s the difference between me setting my own expectations and limits (in both directions) for the role, and having it predetermined for me based on what others paid me in the past.

        1. Tau*

          I’m honestly bewildered by the number of people in comments who don’t seem to see any difference between a potential employer asking for your pay expectation and a potential employer asking for your salary history.

          I’m underpaid. I know I am, and that that gap will only increase the longer I stay with my current company. (I’ve seen our pay scale.) I was pretty certain this was going to be the case going in, and accepted that fact because of the other benefits I gain(ed) from this job, some of them so valuable that I’m willing to stay a while at low pay in return.

          Those benefits will not be in play in the future. In my next job, I would like to be paid market value, thank you very much. I can research market value, figure out how similar positions pay, ask around my network how much my skills are worth, and come up with a halfway decent ballpark figure. It’s under my control. It’s relevant. My salary history is not under my control, not relevant to future negotiations… and given how much I’m (not) being paid right now, the main thing I can imagine happening if I tell a potential employer about my current salary is that they quietly shave 10% off any offer they were planning to make. No thank you!

      2. VivaL*

        Also pay expectations arent verifiable. Pay history is. Some employers actually require w-2 information before an offer and there can be incredible pressure to submit them – or have an offer pulled.

  2. Rincat*

    I hope this becomes a trend too! Also I think wanting detailed salary history on job applications is just stupid. My husband was filling out an online app this past week and they wanted EVERY job he’s ever had listed, complete with hourly rate. So…they really need to know his hourly rate for sacking groceries at Albertson’s when he was 16 (which is now 20 years ago)? How is that information useful or necessary in any way???

    2. Jeanne*

      I remember my very first job. The snack bar at a private pool so they didn’t even have to pay minimum wage. I got $1.25 an hour and all the penny candy I could eat. It was joyous.

    3. stevenz*

      It’s not. It’s just an obstacle to applying, and the harder they make it the more people will not bother to apply, thus making the employer’s job easier.

      1. MsChanandlerBong*

        See, I actually think it takes good candidates out of the pool. People who have options are just going to say “WTF? I’m not wasting my time on this.” Someone desperate for a job, any job, might be willing to fill it out even though they’re not really a great match for the opening.

        1. Ask a Manager* Post author

          Yep — absolutely. Good employers are looking for ways to get the best people into their pool of candidates more than they’re looking to shrink that pool.

  3. sparklealways*

    I saw this and am so glad that you posted about this. I didn’t realize it wasn’t going into effect until July 2018 though! That makes me sad – it should be yesterday!

    I wonder if there is a way to use the Massachusetts law as a part of your negotiation when/ if they ask about salary history and continue to push for it… “Hey, I’m not comfortable disclosing that, and states are starting to realize that this question s unfairly harming certain groups of people, which is why they are making it illegal to ask. I am asking that you respect my salary as confidential and value me based on XYZ and pay me accordingly… “

    2. Amanda*

      While the law does not go into effect until 2018, I expect that many Massachusetts employers will remove such questions from their applications and interviews ASAP – especially because of all the press the law has received in Massachusetts. Applicants who see or are asked those questions will likely automatically think the questions are illegal and discriminatory – no employer wants to start off the recruitment process on that note!

    3. Chriama*

      I feel like that would be too adversarial. We already have a lot of scripts for either not revealing your salary information (e.g. my employer considers that confidential) to explaining why it isn’t relevant to the current position (e.g. my benefits were really good, the position grew and my pay didn’t reflect the new responsibilities which is why I’m leaving, different cost of living/industry/duties, etc). Pointing out that what they’re asking is illegal in other states – and especially talking about the potential discriminatory effects – isn’t something you really have standing to do as a candidate. As an employee, yes, but not before.

      1. sparklealways*

        I get that, and employers have scripts to push back as well. I’m not saying start with this… I specifically said if they continue to push for your salary history, it may be something else to have in your back pocket. I don’t know if it would/wouldn’t work, and I am sure there are more delicate ways of wording it. It was just a thought.

        1. Chriama*

          I guess so… I feel like if you get to the point where you feel the need to bring this up, unless you’re talking to a clueless hr department that you won’t have to deal with again in the future, I would take it as a sign that maybe you don’t want to work for this person.

    4. Elizabeth the Ginger*

      Yes, I’m surprised it’s taking so long to go into effect! I realize a little bit of time is needed for employers to update their applications and for people to become informed of the law (as it doesn’t seem very fair to make something illegal without making sure everyone knows it’s now illegal!). But almost two years seems like a reallllllly long time for what seems to me like relatively minor changes. Though if anyone more versed in law feels that these aren’t such minor changes, I’m happy to have my mind changed!

      1. Megs*

        My guess would be that they wanted to leave enough time to ensure both that employers have time to update their process AND time for currently ongoing hiring practices to wrap up, thus avoiding any issues with retroactive claims or requiring employers to start their processes over again. Allowing a year and a half is definitely a long gap, but it should cover both of those scenarios pretty comfortably.

      2. designbot*

        I suspect it has less to do with the law and more to do with company budgets. I think the timeline is an aknowledgement that hiring budgets will likely need to go up as a result of this, and that will need to be incorporated into the budget in the next fiscal year. Since many (most?) companies start their fiscal year in June, we’re too late to give a budget-cycle’s notice for next summer by just a couple of months. This way they are given just under two year’s notice, but it lets them plan responsibly.

        1. Chriama*

          Considering the new minimum wage law comes into effect within the year, I’m not convinced about this. I’m thinking lobbyists.

  4. Allison*

    I work on a recruiting team based in the Boston area, and most of my coworkers are highly irritated that they won’t be allowed to do this. Thing is, while I get that this will make things slightly more difficult for them when it goes into effect, I think this is a great law and it really bothers me that my coworkers think the ease of their job is more important than fixing the pay gap.

    1. Mike C.*

      What makes it more difficult? The company has budgeted for a certain amount of money for a position, so why not just use that as the basis of the offer instead of customizing it for each applicant? That sounds like a huge waste of time to me.

      1. Chriama*

        Well I think the goal is always to get the best candidate for as little money as possible, especially if you’re an external recruiter. So knowing where they’re coming from makes it easier for you to calibrate your initial offer. Totally gross, but their reaction shows exactly why something like this is needed.

        1. Mike C.*

          And when they find out that they’ve been low-balled, they’re going straight to your competitor.

          2. BRR*

            Exactly. Under-paid people don’t have plans to stay as long. With cost of turnover not lowballing is likely the most cost-effective measure. It’s also the decent thing to do.

            1. The Cosmic Avenger*

              Except the recruiter probably already got their fee, and that kind of fee structure is exactly why this kind of law is not just good but necessary.

              (Applies to the bad apples, of which there seem to be plenty, not the good ones like Recruit-o-Rama below.)

              1. Recruit-o-Rama*

                Thank you for the compliment. :). Many years ago when I worked as a freelance contingency recruiter, I had a flat rate rather than a percentage base fee so that salary negotiations were never about my paycheck.

          4. Chriama*

            Inertia is very difficult to overcome. People don’t always leave right away. Also, if you’re an external recruiter, as long as they stay for just a year you get paid. And if everyone is doing it, the person might not be able to find easy evidence that they’re being underpaid. The problem with crappy behaviour is oftentimes it works.

          5. Milton Waddams*

            Wage wars are not common outside of boom-bust industries. They are like price wars — it is much much more profitable to segment the market rather than compete. So realistically speaking, the competitor won’t offer any more money, and may actually be less likely to hire you; if you jumped ship at your old job for more money, you’ll jump ship at your new one when they refuse to pay you any more too.

              1. Milton Waddams*

                Promotions are distinct; you aren’t being offered more money for the same position, you’re being offered the industry norm for a new position. The reason they do this is that office politics; often it is a smoother transition to promote someone everyone hates equally from the outside than to promote a candidate from within and have their coworkers resent it for years. :-)

        2. Mabel*

          Yes, this. I was called once by a recruiter (he called me), and I didn’t want to tell him my current salary. He really pushed hard and was perplexed and very offended that I wouldn’t tell him. He basically said I was being very unreasonable for no reason and that I would never be hired anywhere if I wasn’t willing to give up the information. What a jerk.

          1. Althea*

            Oh my goodness! My husband had the exact same experience! The recruiter basically said he was being aggressive/disagreeable and that his candidacy would not move forward without disclosing.

            Now I understand the incentive behind it. Grrr!

        3. Recruit-o-Rama*

          I disagree that it is “always the goal”. I have been a Recruter for my entire career and the goal is to get the most qualified candidate at a salary that fits into the company budget, is commiserate with local and industry standards and makes both sides happy. On one hand, many companies may under value what the range should be and the reasons for that are numerous, but not always nefarious. On the other hand, it is just as common for candidates to over value their experience and qualifications. At my current employer, I have license to be very transparent about our ranges, but when I give a range, the vast majority of candidates feel they are worth the very top of the given range where only very few of them really belong at the top of the range. I do not assign nefarious motives to candidates either, but salary negotiation is not a pure science, it’s an art. Not everyone is good at the “game” for lack of a better word, but because employers and employees approach it from different perspectives, it’s very easy to see the other side as having “bad” motivations but I think it’s actually rarely true.

          1. Mike C.*

            When talking about those ranges, do you ever discuss what sort of candidates would be eligible for the higher end rather than lower end of the scale?

            1. Recruit-o-Rama*

              The salary discussions in my phone screens go in all different directions so sometimes yes and sometimes no. I am really looking to make sure that expectations on both sides are in the same ballpark. This can lead to deeper discussions- for me, it is vitally important to understand the mind of the hiring manager for a particular position. Not all hiring managers are able to articulate their expectations in relationship to the range and seemingly pull an offer number within the range out of thin air. I don’t work in a vacuum…or with perfect people…unfortunately. I understand the point of your question though so I guess my Anwser goes back to what I said in my original reply “I have license to be very transparent”

          2. designbot*

            That’s a great perspective to read. After working with someone who I highly suspect was severely over-valued, one of my biggest goals with salary will always be to get the best candidate in the door in a way that sets them up for success in their job. In my business we bill an hourly rate to clients, and project teams are made up of people at all kinds of different rates, which are based in part on a multiplier on their salary. So every person has to function at a level that justifies their billing rate–if they underperform by working too slowly, needing too much help in comparison to their rate, etc., they will tank the budget of every project they work on and hurt the whole team. If they overperform their rate, they will likely not advance as quickly as they should (less will be expected of them and therefor assigned to them based on their rate) and they’ll look somewhere else. A happy salary is one that functions within this system by communicating the correct expectations to project managers.

    2. BRR*

      Have they specified why they are highly irritated? I feel like I’m venturing into “commenter who thinks all employers are out to get them” territory but I’m not able to come up with a good reason an employer would need this information at all.

    3. Bend & Snap*

      I live in MA and have had recruiters really dig for salary info when I gave my desired range instead of current salary.

      One actually did the “do you make more than x” game with me until I exhausted the salary range, instead of telling me what I wanted was out of range. The whole thing was annoying.

      1. Amanda*

        Oh, that’s a really interesting point a blind spot of the law because the law does not cover recruiters. So, you could see recruiters still asking for salary history.

          1. Jerry Vandesic*

            Don’t most recruiters work on multiple searches simultaneously? Could they make the argument that a conversation is not about a specific employer so isn’t covered by the law?

    4. Lora*

      What the …? Every time I’ve worked with a headhunter, they’ve always been up front about what the range the company was willing to pay, because they got a commission based on how much the candidate was worth – lower paid candidates were not worth as much. So if the company salary range was $90-100k, they would look for candidates whom they could justify as being worth the $100k, in order to make a higher commission. The thinking seemed to be that any ding-dong could find someone off the street who could make widgets, but if you could find a rockstar then you deserved a better commission than the widget-herder.

      It’s actually been super useful to me because at some companies, I would not have guessed that they could afford that much, and for large companies it told me exactly how underpaid I was.

      1. Mike C.*

        This can go both ways. If in the time it takes to find a single 100k candidate you can find 2-3 90k candidates, you may go for the latter just to fill the spot and go for the next one. Opportunity cost can go both ways here.

        1. Lora*

          Good point. And it makes even more sense when the job is flexible enough that the spread could be much wider – if someone who is OK costs $70k and will do the job well enough, but rockstars few and far between.

          I had been thinking of my own field where there are only maybe 5 mostly-qualified local-ish people available and looking in an economic downturn, and finding #1 isn’t much more difficult than finding #4. But in something more generic like “mid-level widget marketer in unregulated industry” it’s probably way easier to find a few dozen candidates who will all be at least OK, and a real time investment to woo #1 compared to #56.

    5. BethRA*

      Frankly, I think the fact that recruiters are complaining about the law as much as they are, that it will deprive them of a “key tool” for evaluating and negotiating with candidates….really makes that case for why the law is necessary.

  5. finman*

    My biggest issue with a pure salary figure is that it doesn’t include 401K matching, healthcare costs, and other benefits that may or may not have additional costs/sources of future income. A 100% match up to 6% vs, a 50% match up to 6% will give you a “raise” of 3%. Or a company on a high deductible plan vs. a PPO can have very different effects on your take home pay.

    1. Amanda*

      The law defines compensation to include benefits – so the salary and benefits must be equal for comparable jobs.

    2. the gold digger*

      You can always do the math on that if you get an offer, but let the employer lead with the salary. And if they have fabulous benefits that make up for lower salary, then they can talk about that, too. I had an interview at FedEx years ago and they started the discussion by saying, “Our salaries are not as high as salaries in other states, but there is no state income tax in Tennessee and the cost of living in Memphis is fairly low.”

    3. AnotherAlison*

      Particularly an issue if you think they’re going to verify salary history. My match baseline is 6%, up to 10%. Ten percent is a fairly good-sized number in my world. Would I look like I’m lying if I put down X+10%, or would I shoot myself in the foot if I only put down X? (Ideally, you could explain the number is your “total compensation package” but I’m sure there are online form scenarios where you can’t.)

    4. BRR*

      Yeah that’s something to always think about when contemplating an offer. Or for me I have a lot of commuting costs as I take regional transit. To me though that’s hard for an employer to qualify as part of an offer as people use insurance and other benefits at varying rates.

    5. davey1983*

      I agree so much with this! My first professional job out of college only paid me $35,000, but had amazing benefits– I didn’t pay a cent out of pocket for any of medical expenses, pension, etc. My second job gave me a raise of $10,000 and I took it without looking at the other parts of the compensation.

      Turns out that both jobs had equal compensation once I considered the benefits I gave up to take the second job. Lesson learned– look at the entire package, not just the salary number!

  6. Leatherwings*

    I didn’t even know this was under consideration in MA. Awesome! I hope more states follow suit.

      1. Ask a Manager* Post author

        There’s been a lot of coverage of it! New York Times, etc. About 50+ readers sent me articles about it (more than has ever happened with any other news event), so I think word is getting out.

  7. baseballfan*

    I see this discussed often and every time, it crosses my mind that this cuts both ways. If employers can’t ask about salary history (which I agree is irrelevant to the appropriate pay range for the job being considered), then potential employees also can’t argue that the fact that they were paid X at their former/current job means that should be a baseline for the potential new job.

    1. Amanda*

      Applicants can still argue that their pay should be commensurate with their salary history. The applicant can volunteer that information at any step in the process. Applicants who exaggerate their salary history should beware, though, because the employer can confirm salary history with the prior employer(s) after it has made an offer of employment to the applicant AND the applicant authorizes the prospective employer to do so.

      1. Emmie*

        You’re making great points, Amanda. I’ll add that the offer needs to include salary / compensation information. In Mass, it will be illegal to screen based on wages, benefits, or other compensation.

        I’m very interested in seeing if Mass provides any advice to employers about disclosing salary to prospective employees. I imagine that saying “it pays 55k, are you okay with that?” Might run contrary to the law.

        1. Chriama*

          That actually seems like exactly what the law is trying to provide. Employers don’t have the candidate’s history so they can only state what their range is or ask for a number. Telling them it pays 55k and waiting for them to accept or counter is pretty fair.

        2. Angelina*

          I don’t see how that would run contrary to the law. Employers SHOULD be forthright about what salary they can pay.

        3. Liana*

          No, it definitely doesn’t. In fact, I suspect that’s exactly what MA is trying to do with this. Being upfront with a job’s salary range is good practice and very much within the law.

    2. justsomeone*

      I think they can in context of “I made 50K at previous/current job and can’t afford to take a pay cut.”

      1. Mabel*

        I had an interviewer ask me once if they needed to offer me as much at the new job as I was making at the old job. I was flummoxed. Of course I wanted to make more! That’s why I was switching jobs. I guess they thought I was making too much at the last job. (I did get an offer of a tiny bit more than I had been making, and I took the job.)

        1. Chinook*

          “I had an interviewer ask me once if they needed to offer me as much at the new job as I was making at the old job. I was flummoxed. Of course I wanted to make more!”

          But that isn’t always why someone is applying for a job. I voluntarily took a pay cut for one job because the hours were more regular (the higher paying one was more feast/famine), the work interesting and the work environment very enjoyable. Plus they had benefits, which the higher paying one didn’t. On paper I looked foolish but that was the best job move I had ever made.

    3. FellowMoominFan*

      If I have a current job (that I’m not in a hurry to move on from for some reason), I will still argue that I should be paid more at a new job. Otherwise I’ll just stay at the current one and that’s that…

      1. the gold digger*

        Exactly! I have talked to two recruiters in the past month. I really like my current job. My first question to each of them was, “How much does this job pay?” I would have to make a lot more than I am making now to leave.

        When I got my offer from my current job, it would have been an overall compensation cut. I made up a spreadsheet and sent it to the man who is now my boss, explaining I really wanted to work with him but not enough to take a pay cut. He came back with more money.

        (I would have taken the original offer just to escape my horrible previous job, though. So I was bluffing.)

    4. Mike C.*

      That doesn’t make sense to me – an applicant can always say in essence, “Why should I take a pay cut to work for you?”

      When an employer requires this information, it has systemic effects on such things such as pay gaps based on gender and race. When an employee candidate does this, there is no such effect.

    5. LQ*

      That seems completely reasonable to me. (Though my jobs have been few, radically different, and some governmental, so I may be skewed.)

    6. Chriama*

      But the argument is needless. An applicant can just as easily say “I would have trouble leaving my current position for less than ‘x'”. Arguing that this is what they used to make is just a proxy for the real issue, which is that they want to make a certain amount of money. If anything, I think this will (or should) empower people to state their requests more boldly. After all, now a single lowball job in their past won’t compound into future lowball offers.

      1. JOTeepe*

        Yup. I might actually make X-15%, but there may be a whole host of reasons I have a baseline in mind I am willing to accept to move out of my current position.

  9. C Average*

    Slate Money (my favorite podcast) did a really good segment on this law on Saturday’s show. They talked about why it’s good, why it won’t entirely solve the problem, ways people will likely try to circumvent it, and a few other related topics.

      1. Amanda*

        One way to circumvent is to ask the applicant for a “desired salary range.” The range will likely give some insight into their salary history. Not clear yet if the Attorney General and/or the Courts will say that this question violates the law.

        1. Joseph*

          I think that’s totally different though since it actually answers the relevant question to employers: “What do I need to pay to get you?”
          Your salary history may or may not reflect what your desired salary range is/should be. Maybe you’re currently underpaid and know it – but revealing that fact would immediately wreck your negotiating power. Maybe you are underpaid on money but the company has incredible non-financial benefits (PTO, culture, etc), so moving to a more normal-benefit company would require a notable pay increase. Maybe your company hasn’t given raises for three years due to budget concerns. Maybe you’re overpaid-but-miserable and willing to take a pay cut for lower stress/less toxicity. In all these situations, you could adjust your desired range to what you actually want – whereas if you just give “current salary of $X”, $X becomes the starting point even if it’s not a reasonable comparison.

          1. Amanda*

            I agree with your scenarios. However, not all applicants are going to put that much thought into their responses. I can envision some applicants (especially those who were not prepared to answer the question) just blurting out a number that is close to their current salary. As the law stands, employers can ask that question now. However, I could see the AG thinking that the question of “what do I need to pay to get you” should be a question asked after the employer has decided they want the applicant, and prohibit the question until after an offer has been made.

            1. Anonymous Educator*

              But that’s fine. If candidates shoot themselves in the foot by thinking their desired salary must be only a small step above their current salary, there’s no law that can prevent that. This law is designed to not perpetuate salary inequality that’s based on one lowball salary (or lack of negotiation) locking you into an increasingly lower salary for your whole career.

              1. Jaydee*

                But there are studies that show that women and people of color are less likely to negotiate aggressively than white men. So, I think that asking for a desired salary range or “what do I need to pay to get you” is certainly better than asking for salary history. But it can still perpetuate salary disparities if women and people of color end up low-balling themselves based on their salary history.

                1. Anonymous Educator*

                  Yes, and I fully agree with that. I just don’t think that’s something legislation like this can fix. Not to mention, people of color and white women tend to negotiate less aggressively than white men because they also tend to get penalized for it more than white men do (yes, as Alison says, that doesn’t mean you shouldn’t still try to negotiate or that you can’t do so successfully—it just means people in marginalized groups not negotiating aggressively is based on actual sexism and racism and not just some lack of “leaning in”).

        2. Jeanne*

          This is what I thought of. They’ll just say “what do you expect to earn” and you’re still screwed. Maybe you add 15% to your previous salary, this is under what they expected to pay, and they say great. I still think companies will do everything possible to not mention the range.

          1. Anonymous Educator*

            But, again, that’s not their fault for you not doing research to find out the market rate for your position. The law is so you employers don’t trap you, not so there’s no way for you to trap yourself.

            1. Jeanne*

              There are a surprising number of jobs that are uncommon and it’s hard to find a market rate. I had one.

        3. Thefuture*

          The next law then should be for all employers to list the salary range they are willing to pay. Let’s just be as transparent as possible here.

      2. Pwyll*

        There was some discussion in one of the trade groups in Massachusetts that employers could simply ask, “Our budget for this position is between x and y. Is that consistent with your background and expectations?” And then, at the post-offer stage while doing employment verification, reject a candidate if they replied “yes” but their history was wildly lower than the offer, because the offer revocation was based on the candidate’s lie, and not their actual salary.

        Based on the wording of the statute, I think this would also be illegal. But there at least some groups trying to come up with ways to still get information they erroneously believe is imperative for their hiring decisions.

        2. Chriama*

          That definitely sounds like a way to open yourself up to a discrimination lawsuit, because rescinding an offer that you were prepared to make would disproportionately affect minorities who already suffer from the income gap. Also, “expectations” is totally subjective, while “background” would probably be seen to violate the spirit of the law.

          1. Pwyll*

            Completely agreed. Just an example of employers twisting themselves into a pretzel needlessly to still attempt to get salary info.

            1. neverjaunty*

              I’m sure a few of them will need to get rapped upside the head with lawsuits before they quit trying to be cute.

        3. Lora*

          “Is that consistent with your background?”
          Since usually headhunters are approaching me, and not the other way around, I am rather annoyed if it is clear they didn’t trouble themselves to read my LinkedIn profile. Not a good way to start a business relationship. “Hi, I am spamming 365402404425804305 of your closest friends and colleagues looking for someone with a different degree and only two years out of college and willing to do something that has absolutely nothing to do with anything you have ever done before in your whole life, we are paying $4/day, is that consistent with your background?” No, no it is not, have a nice day.

          I suspect I have gotten LinkedIn messages from these very people. All the more so because if you pull an offer based on “you make more/less money than I thought you made!” they will not hire very many people in my field, where people hop from startup to MegaCorp to startup again.

        4. AW*

          reject a candidate if they replied “yes” but their history was wildly lower than the offer

          What, why?!

          What’s the justification for rejecting a candidate that they were willing to pay the offered salary to before finding out their previous salary?

          Also, if employers are no longer allowed to ask for salary info from job candidates, why would they still be allowed to get it from previous employers? That seems like an odd loophole. Do employers even give out that info to anyone?

  10. Mabel*

    Sometimes (times like this) it almost feels like “cheating” to live in Massachusetts! :)

  11. Moonsaults*

    I almost got screwed when I applied for a position that was lower than my previous wage. Thankfully they understood after I explained why it was going to work out, I was working less hours at the other place so it shook out in the end. Granted “against the law” in terms of many small business owners POV isn’t going to stop them from that slip up.

  12. Hacky Poet*

    I would like to send this link to all of the hiring consultants that request your salary history for municipal job applications. Which I think really sucks.

  13. all aboard the anon train*

    I haven’t read the updated version of the law, but there was something in the earlier drafts that said employers have a right to ask about your former salary or contact your former employer for your salary if you provide written authorization. I had one company in Boston recently who made me sign a consent form saying they were allowed to ask whatever questions they thought relevant during the interview process or contact former employers (not my references, but HR), which seems like a sneaky way to get around the law. I chose to self-select out of that interview for several reasons, but the way they were handling the entire thing made me think they were going to be a company who really pushed back against this new law.

    2. Ask a Manager* Post author

      If you volunteer your salary in the process of salary negotiations (“I’m currently making X and I’d need to increase that”), then can then ask for confirmation, with your written authorization (so that they don’t just have to accept people’s word for it). But they still can’t ask you to disclose; this would be if you voluntarily mentioned it.

  14. Mena*

    There is HUGE lack of awareness here in Massachusetts that this law is coming online. This has been almost completely hushed up, leaving those seeking work unaware that these questions cannot be asked and that they don’t have to be answered.

    2. Elizabeth the Ginger*

      Well, the law doesn’t actually take effect until July 2018, so interviewers can still ask these questions currently. Hopefully by the time the law does take effect it will be more common knowledge…

  15. Emmie*

    The Slate interview says that salaries are required to be posted. I did not read that requirement in the law. Where do you think the posting requirement is in the rule?

      2. Emmie*

        Thank you both, Amanda and Allison. I thought it was wrong. There’s another inaccuracy out there too. A major respected newspaper said that the law required hiring managers to state a figure upfront. The statement was really misleading b/c the Mass law only required an employer to disclose a salary once an offer is made. It shows the importance of reading the law ourselves.

        1. neverjaunty*

          Legal journalism is second only to science journalism in how horrible and error-prone it is…

            1. the gold digger*

              My favorite example and my one data point to support the idea that people who are good at math do not go into journalism is when the Austin newspaper reported that because X% of the blood samples taken at the University of Texas student health center were HIV positive that X% of the entire UT student body was HIV positive.

            2. Mike C.*

              Think about all of those stories you hear about “a study says *contradictory thing*” on the evening news. Those reports never talk about the limits of the research, research methods, how often it’s simply an animal study. All that and the never put the study into the context of the greater body of work on the topic so you can better understand what to do with that new information (most of the time? just wait for more studies).

              Then you end up with people who think they know more than actual scientists working in their own field because “scientists are always changing their minds” and garbage like that. It’s absolutely terrible.

  16. Recruit-o-Rama*

    I don’t live or work in MA, but if this law were in effect in places my company operates, I can’t say it would make much of a difference in my day to day work. I don’t ask for salary history in my screens, I ask for a salary expectation for the job they applied to. Most of the time, they start their sentence, “right now I make….” So a lot of candidates volunteer this information. This law would make me uncomfortable because if we don’t hire them, they may claim that I asked them what they make now because that’s the question they answered, even though I didn’t ask them that question.

    1. hbc*

      They can claim that, but you didn’t. It’s not your fault if they fail to read clear instructions and volunteer information. As long as you don’t take that salary into account (i.e.: offer $45K to the person making $43K and $50K to everyone else), you’re golden.

      1. Amanda*

        Yes, but it will take a long and expensive litigation to prove that you did not take the salary into account . . .

        1. Slippy*

          Nope, just point to the job advertisement where you stated the range you were willing to pay.

      2. Recruit-o-Rama*

        My company has a pretty tight HR compliance policy so my guess is that we will see new processes in place to try and mitigate the risk. I understand the reason behind the law and I am….ambivalent about the reasoning behind it but I think it’s going to be a pain in the butt to manage.

        1. Chriama*

          Yeah, seems like you can get around that pretty easily by putting a salary range in your job ads. If that’s against your HR compliance policy then it sounds like your company’s making this unnecessarily difficult, not the law.

          1. Recruit-o-Rama*

            I have mixed feelings about putting the range in ads, I see both sides of the debate. The policy about putting the range in the ad has nothing to do with HR compliance though. My company isn’t affected by this law and they haven’t done anything to make things difficult and I haven’t suggested the law will make things difficult, I’m merely discussing the law and how I feel about it, like everyone else, not sure what point you’re trying to make.

    2. Moonsaults*

      It’s incredibly difficult to prove someone asked you anything during an interview in the first place, so that will be your first safety net. I had someone do the round-about way of fishing for my age during a job hunt a couple years ago. She managed to offend me and break the law at the same time but really, it wasn’t worth ever pursuing any actions against an old lady on her way out of the job she was finding a replacement for.

      They can claim you asked them anything they want, I’ve known a million liars in my life but the ones who go to the extent of jumping through BOLI hoops, those are rare.

      You won’t have any issues if you follow procedure, you can get hit by a discrimination claim for breathing on the wrong person.

  17. AccidentalSysAdmin*

    What does this mean for online applications that ask for a salary range? Will there be a box (like some other categories) that say: exempt for applicants in Massachusetts?

    This law is a progressive step in SO many ways, having been filling out dozens of applications with required salary history, you find yourself lowballing to try to be considered for a position-which lowers the floor for not only the applicant, but everyone else.

    Can employers ask about a salary range? I have noticed this in the prehire phase. I had one HR person say: “Now about the salary. Have you even thought about a range? Just any range you had in mind? If we were to put up a pin board with the salary distribution on it and see at a glance what every person here was earning, we would be able to say ‘Wow, that person is worth XYZ salary.’ “(Which I thought was kind of a strange thing to say, but maybe that means they actually base the salary on experience/performance.

    1. Amanda*

      I think a notice in the online application that applicants for positions in MA do not need to complete the salary history portion would be sufficient. Employers should be careful though, because even if the information is disclosed, employers cannot screen applicants based on their histories.

      Employers can technically ask about a salary range, now. We are going to need to pay close attention to the AG’s regulations to watch for any prohibition against that type of question.

      1. The Cosmic Avenger*

        Well that’s interesting, because there have been plenty of horror stories here about online application systems where a certain response is required to proceed, but that response doesn’t apply! Like I think one was something like it didn’t require a college degree, but the college/university part of the application was REQUIRED to submit that page of the form!

    2. BRR*

      Is this for residents of MA or companies in MA? If my company does not do business in MA and a MA resident applies for a job say based in New Mexico, does this apply?

      1. Emmie*

        It applies to both residents of and companies in Mass. If your out of state company has contact with a prospective employee who is also a Mass resident, you cannot ask about wages or other compensation until you have an offer with salary info. But this law doesn’t apply until Jan. 2018.

    3. Overeducated*

      I am curious what this would mean for federal applications for jobs located in MA, or applicants from MA creating USAJobs resumes. Is there a government exemption to the law? Is there a provision to ensure that people in MA who do not fill out those “required” boxes will still receive full consideration?

    4. Chriama*

      Are they asking for a desired range or your history? Because I think it’s normal and not against the spirit of this law to ask for a desired salary from an applicant.

  18. LisaD*

    I’m afraid employers will just start with a lowball offer and try to provoke candidates into proactively disclosing, e.g., “I couldn’t take this job at $40K, I’m already making $65K.”

    1. Anonymous Educator*

      Employers can try that, but there’s no reason for the last part of that sentence:
      “I couldn’t take this job at $40K.”

      They don’t need to know what you make now, only what you’ll agree to work for.

      1. LBK*

        Yes, or even just “That’s too far below my current salary for me to be able to accept.” I suppose if they continued making offers they could eventually figure out what you make by process of elimination, but I don’t think most people are going to stick around for that kind of nonsense, especially if the first offer is an obvious lowball.

        1. Chriama*

          Exactly. And quite frankly, a severely lowball offer is more likely to get a stare of incredulity than a knee-jerk “actually, I make 1.5 times what you’re offering”. So the employer is more likely to lose goodwill with potential employees than sneakily figure out how to lowball unsuspecting people for the future.

    2. Chriama*

      I think you’re also overestimating what sort of contortions employers will do to get your salary history. It isn’t the secret to eternal youth. They want to know what salary you’ll be willing to work for (some might frame it as the lowest salary they could reasonably offer you). If they can’t use salary history they’ll just outright ask.

      People use history for a bunch of different reasons – to lowball you, or maybe figure out how much they have to offer you to get you to jump ship and whether they can afford you, or to understand the level of responsibility you had at your previous job, or use salary progression as a proxy for measuring your career success, or to understand if you’ll be happy in this role and/or willing to stay long term. It’s not really efficient to try and figure out how to trick you into giving them your salary history when they really want to know this stuff and can ask it directly anyway.

      1. CMT*

        That’s what I was thinking reading some of these comments. I’ve never been asked for a salary history, so I know it’s not universal. I’m sure some employers might be very disappointed to lose that option, but I bet not the majority.

      2. Slippy*

        Also if a potential employer is going to all this time, effort, and aggravation just to get your salary history they are doing you the benefit of raising some red flags that you may not have seen otherwise. I think this rule may actually simplify hiring since it takes some of the gains away from this tortured dance (some) employers do just to get a body on the cheap.

  19. Darcy*

    There’s another HR blog that I regularly read called “The HR Capitalist,” and he took the exact opposite stance that you have: http://www.hrcapitalist.com/2016/08/massachusetts-loses-mind-passes-law-outlawing-employers-asking-for-salary-history-.html

    When I read his article I couldn’t help but think about what you’ve written about in the past, and that I also think that the law is a good thing because it forces the right questions. It’s interesting to see the different opinions on these types of issues.

      2. Anonymous Educator*

        The pushback is excellent. Yes, why not just post the salary range and let the candidates self-select out?

    2. Chriama*

      This guy is dumb. Stating a salary range right off the bat is the best way to combat this and probably also the law’s intent. And it’s your job to assess a candidate’s experience and make an offer that fits in with what they know and what you need, so I’m not moved by the whining that you’ll actually have to do it seriously now. Finally, the idea that employers are less savvy negotiators? Employers have almost all the power in the salary process anyways. Candidates have to cobble together an understanding of the market based on crappy crowdsourcing websites, trawling through job ads and trying to tactfully ask acquaintances. As an employer, you can literally buy a salary market study online. So whining that someone who’s traditionally had an unfair advantage is now going to have slightly less of an advantage makes me think ‘check your privilege’. This article screams white male.

      3. Recruit-o-Rama*

        Calling someone with a different opinion “dumb” is rude. I don’t 100% agree with what he thinks about this law, but I don’t 100% disagree with it either, it doesn’t make me dumb but seeing a comment like this makes me feel like I can’t have a discussion about it without being considered dumb.

        I’m not a white male, btw, and I really hate that a lot of times when a less popular opinion is posited on this discussion forum people start yelling “white male privledge” as if white males are defacto wrong.

  20. Lauren*

    I don’t understand why this portion of the law can’t be active today. There does not need to be a 2-year grace period to stop asking people for salary history. Just stop. It hurts no one, but the candidate.

    1. LBK*

      I agree that two years is awfully long, but I think part of it will just be administrative turnaround time – such as the example mentioned above, where some online hiring systems have mandatory salary history fields, so some time is needed to update those systems in order to not violate the law.

    2. Amanda*

      The two years is designed, in part, I think to allow the Attorney General’s office time to issue regulations. In addition, the law strongly incentivizes employers to conduct self-audits – so the two year period will allow employers enough time to design and execute those.

  21. Employment Lawyer*

    The law requires an interpretation from the Mass Attorney General, and the law will probably require some tweaking. That also explains some of the delay.

    Mostly it’s actually a pretty huge change which explains most of the delay. Whether it will be a net positive for employees remains to be seen.

    As a practical matter this is trying to take a huuuuuuuuuge amount of power away from employers–who are, after all, the ones who create jobs, sign paychecks, etc. In essence it puts the burden on employers to demonstrate that something is a “business necessity” (which is a pretty high standard) rather than “it’s my company and I prefer people with 12 years of experience over those with 10 years of experience but I can’t say why.”

    As for why it won’t necessarily help: Well, we don’t actually know what will happen. I suspect it’s likely to push inequities towards things which are harder to track (hiring, soft promotions, contacts, etc.) Here’s an example of why:

    Say an employer is considering a few new hires, including Ten-years-managing Tom and Eight-years-managing Emily. They want to pay Tom more because they think he has a little extra something–they can’t put their finger on it exactly, but it might be from those two years of work experience. The employer may be wrong, of course, but it’s their job and their money, and as a result they certainly feel entitled to make the call. (If you think it’s obviously not their call whatsoever, or that they are evil to thinking they can choose in exchange for a paycheck, France and Venezuela may be worth a visit.)

    But under this law the employer can’t do that any more. They basically need to pay Tom and Emily the same amount, because they can’t point to a clear metric or “business necessity” to justify the variance. Even though they think Emily is worth less, they can’t pay her less–because if they do, they risk a lawsuit and they risk getting a bunch of people who would be more than happy to second-guess their business decision.

    Many folks seem to imagine the solution will be “pay Emily more,” but it’s quite probably going to be “don’t hire Emily at all.” That is because it is much more difficult to win a “failure to hire” suit than almost any employee suit.

    In other words, it won’t change what employers want (and try) to do. It will mostly change the method. Whether you think this is a benefit probably depends on whether you’re friends with Emily.

      1. Employment Lawyer*

        Often not. And it is also not often a business necessity.

        Think of it this way: You probably distinguish between a doctor who just graduated and one who has been working for two years. But if you’re like many folks, you probably don’t distinguish between a doctor with 14 years of experience and one with 12, or 16, years.

        Some folks care quite a bit. But even for those folks it would be hard to prove in court that it is a necessity to have someone with 16 years of experience rather than 14.

        1. Mike C.*

          Just because they care a great deal about a difference of a few years across decades of experience doesn’t mean it’s justified.

    2. Mike C.*

      It doesn’t take power away from employers at all, unless by power you mean “a common method of low-balling employees, especially women”. They can still offer a range of pay based on business needs such as relevant skills, experience, current labor market place and so on.

      Also, I find the excuse that “this single law won’t fix the entire problem of pay equality therefore it’s a bad law” to be particularly disingenuous. Huge societal problems like pay equality won’t be solved by a single law in a single state. You solve these issues by going after the low-hanging fruit first, then adapting to the changes.

      Finally, being able to measure things in the workplace isn’t Business 101, it’s covered in the remedial business course they make you take before you can start your MBA. You can’t know anything until and unless you can measure it, and for too many years that “extra something” Tom had that Mary didn’t was found between his legs.

      1. Chriama*

        “for too many years that “extra something” Tom had that Mary didn’t was found between his legs.”

        Nice! That made me laugh.

    3. Chriama*

      Well, 2 years of extra experience is a pretty clear metric. And I would say that any employer who wants to pay a male employee more than a female one because they have ‘a little something extra’ but aren’t able to clearly identify what it is should probably do an internal audit to make sure all their women and minority employees aren’t all missing that “little something extra”. Seriously, how hard is it to look at projects worked on, or relationships with clients, or widgets produced? You have employees for a purpose. You should be able to evaluate whether or not they’re meeting the need you ostensibly hired them for.

      Also, I think your comments about France and Venezuela are deliberately antagonizing. No one is claiming to want to take away the agency of employers, only for them to check their assumptions and back up their assertions.

      1. Anonymous Educator*

        Yeah, if you can’t articulate why employee X should be paid more than employee Y, then pay them the same. Not that complicated. Vague terms like “a little something extra” or “a better cultural fit” have historically been subtle (and often unconscious/subconscious) ways for employers to discriminate against women and/or racial minorities, etc.

      2. Employment Lawyer*

        Also, I think your comments about France and Venezuela are deliberately antagonizing. No one is claiming to want to take away the agency of employers, only for them to check their assumptions and back up their assertions.

        You simply don’t know what is involved here if you’re using the world “only.”

        I do plaintiff’s work. I’m going to make a ton of money off of this. This is an extremely dangerous law.

        First of all, it’s not super well defined. That is never a great thing. The AG regulations will help, but they can’t cure a difficult law.

        Second of all, there are very very large penalties for violations: automatic double damages PLUS class action eligibility PLUS attorney’s fees (which can vastly exceed the damages.) There have been federal cases with a $10k award and a $100k attorney fee award.

        Third, this is functionally going to be a retroactive “disprove” statute in which the employer carries a significant burden of proof.

        That is a really, really, harsh combination.

        To illustrate: We all know what wages are. And you would rationally choose to bet your company (or your house, or your kids college tuition) on fairly paying wages. It’s straightforward and obvious. You can literally look it up.

        But no matter what happens here, there will still be weasel words in the statute like “substantial” and “reasonable.” And those will be interpreted with 20/20 hindsight with big money on the line and no way to fix it; there is no demand obligation here.

        Do you want to bet your company on the fact that everything you did will be adjudged RETROACTIVELY appropriate, when you get sued by an employee who has been saving (or creating) evidence and you haven’t really been thinking about it? She may be happy; she may have signed in blood, but it doesn’t matter since those are legally irrelevant.

        “Only.” heh.

        1. Employment Lawyer*

          To illustrate: We all know what wages are. And you would rationally choose to bet your company (or your house, or your kids college tuition) on fairly paying wages. It’s straightforward and obvious. You can literally look it up.

          Forgot to add: Even so, people screw it up all the time. Some of them are evil wage-stealers, sure. But a lot of them are just stupid. And some are neither stupid or evil, but are targeted by evil employees (who do things like “specifically asking for a particular pay arrangement, convincing the employer to accept it, and subsequently suing the employer for a lot of money.”)

          If people can’t get basic wages right, they will never get this right. It’ll be great for me but there will be consequences for sure.

    4. ArtK*

      Employers who use previous salary as some kind of metric are fooling themselves. All it does is tell you what someone else thought that this employee’s value was. It tells you nothing about the value of the employee to you. As noted elsewhere, it can be very skewed in either direction. Someone could have been consistently low-balled on promotions by a bad manager, or someone else could have gotten raises every time they turned around because they were the boss’ pet. It tells you nothing about the value of this job to the employee, either. Again, people have pointed out that differences in hours, or benefits may outweigh simple dollars.

      There’s plenty of other information from the hiring process that can be used to determine the value of this employee. Years of experience, type of experience, the impression they give in writing and in person. Make an offer based on what you think their value to you would be. If they accept, great. If they don’t, then you didn’t agree. If several people turn you down, then you have to decide if your valuation is correct.

      1. Anonymous Educator*

        Employers who use previous salary as some kind of metric are fooling themselves. All it does is tell you what someone else thought that this employee’s value was. It tells you nothing about the value of the employee to you.

        Even within my own profession (schools), I see some teachers being paid $50,000 who are working harder and doing a better job than teachers being paid $100,000 (not joking). The money means nothing in terms of how good the person is or what value she can bring to your school/org/company.

        I can certainly say there are places I’ve worked that have severely underpaid me, and it would have been super depressing to me if all my subsequent salaries were based on those measly ones.

    5. CMT*

      “They want to pay Tom more because they think he has a little extra something– they can’t put their finger on it exactly”

      This is exactly the point of the law. I know you’re a fancy pants attorney, but you’re totally missing the point here.

        1. Mike C.*

          I just looked up the hourly GDP (PPP) numbers, and there’s really isn’t that much of a difference between the US (3rd) and France (6th). Nations like Germany, Japan, Canada and the UK all rank lower.

          Number one? Norway.

    6. Violetta*

      What’s that comment about France even supposed to mean? I work there and as far as I’m aware I applied for my job, work my job, and am compensated for my job just like my American colleagues are.

      Your comments always have me in disbelief that you’re an actual employment lawyer but I guess it takes all kinds.

      1. Noble*

        Doing your homework through law school, showing up to class most of the time and studying and passing the BAR is what it takes to become a lawyer.

        There are no requirements about personality, moral fiber, political beliefs, racism, sexism, misogyny, bigotry, bad personality, biases, anger issues, etc etc etc.. lol.

    7. AW*

      Many folks seem to imagine the solution will be “pay Emily more,” but it’s quite probably going to be “don’t hire Emily at all.”

      They’re going to hire both and pay Tom less. They might even do both: pick a dollar amount in the middle and pay Tom less than their initial figure and Emily more. But any sensible company that needs to hire multiple people isn’t going to only hire one because the alternative is hiring a woman. They also aren’t going to insist on paying the highest salary once they have to justify it and can’t.

      How would that conversation go?

      Team Manager: I want to hire this guy at the top end of the scale.

      Approver: On paper he’s only at the middle of the scale. You know the regs require us to justify pay. What’s the business case for paying him more?

      Team Manager: There isn’t one. I just feel it somehow. We need to pay him more.

      Approver: Really, nothing? He doesn’t have a skill the other candidates don’t? Nothing like that?

      Team Manager: Nope. There’s no difference between him and the rest of the new hires. I just really want to give him all of our money for no real reason.

      Approver: How do you justify not giving Emily the same salary?!

      Team Manager: How about we just don’t hire her or any woman for this position?

      Approver: Get out of my office.

  22. Ameena*

    I wish someone would modernize the United Nations (and other international organizations’s) hiring system! Not only do you have to list your salary histories, but you are required to list every job you’ve EVER had (including if you worked retail in college!) you also have to list the exact date you started university and the exact date you finished (as in it matters if on the 10th or the 23rd of the month, and you can’t just confirm your degree(s.) They somehow find it crucial to know if you took 4 years or 8 years to graduate (even if 8 yrs means you went part time while working and supporting a family. Speaking of family, you must declare if you are married or not, and how many children you have – because salaries and benefits are determined based on that. Someone who is married and/or has kids gets paid a differential to account for such “extras”. Think those are unfair or “wrong” questions? Don’t expect to work in the international sector then, sorrry!

    I think whats been happening or evolving in the USA is wonderful but its so different elsewhere, with a lot of catching up to you all to do!

      1. CMT*

        But do they have have to follow US laws for employees in the US? (This is a genuine question, not snark.)

        1. Ask a Manager* Post author

          Generally anyone operating within the U.S. has to follow U.S. labor laws for their employees based here, but I don’t know if the U.N. has some U.N.-specific exception.

        2. Alessa G*

          The United Nations Headquarters in New York actually does not exist in the United States, but sits upon soverign UN territory. So I imagine it can avoid many U.S. regulations. Things still have a very European vibe, in terms of work culture and processes—a lot of which seems very archaic to Americans (with good reason.) It may seem outlandash to be required to state marital status and number of children, but since the UN will pay for their private schooling and try to insure opportunities for an accompanyingg spouse, that is actually very relevant to them, and to potential employees.

    2. silver*

      Wow that’s terrible! Just absolutely ridiculous. How do they justify this kind of thing?
      But then the UN does seem very much about hiring a certain type of people rather than having a diverse workforce. It really grinds my gears that they don’t pay their interns (WTF), and after doing an internship, there’s a stand-down period of 18 months or so before you can be considered for jobs there! Their recruitment practices really don’t impress me.

      1. UN Anon*

        All the interns I’ve ever worked with were paid.
        The period where you can’t apply for jobs is an anti-nepotism measure and mostly a result of the behaviour of some of the interns.

    3. CMT*

      Do they really do such extensive background checks? I guess I wouldn’t be surprised if they do. But how are they really going to know if you leave off that retail job you had for 4 months your freshman year of college?

  23. Brett*

    How does this impact an employer using public records to obtain salary history?
    e.g. Public employees whose earnings are discoverable through sunshine laws

    1. Anonymous Educator*

      That should be fine. They’re not allowed to ask the candidate to disclose, but if the salary is a matter of public record, the employer doesn’t need to ask.

      1. Brett*

        That’s too bad. I was already at a significant disadvantage having a discoverable salary when I went from public to private. Allowing an employer to use salary history for public employees without their consent but not private employees could make an even bigger disadvantage.

      2. Brett*

        Actually went through the law and there is an interesting twist here:
        “(c) It shall be an unlawful practice for an employer to: (3) seek the salary history of any prospective employee from any current or former employer; ….”

        There is no exception here for current or former public employers, so it looks like requesting salary history from a public employer, even if a public record, could be illegal.

    2. Amanda*

      An employer is free to check public records to obtain a salary history. In Massachusetts, several towns and cities actually post the pay information for their public employees – so it is easy to look up. I’m not sure what other public resources would be available.

      1. Brett*

        Another example would be records from an alimony proceeding, or if the person previously applied to a public sector job. (Not sure about Massachusetts, but in many states the work and salary history portion is sunshineable for rejected applicants.)
        Nearly all public salaries are sunshineable if the requester pays, even if not posted publicly.

  24. KB*

    Thankfully in Australia we don’t tend to ask that question much, but I can’t help wondering if anyone has turned that question on its head and asked companies to supply a detailed history of the salary and benefits paid to that position since its inception. I would love to see their response! (I bet that information would, surprise surprise, be confidential…)

  25. Ebi Poweigha*

    I live in Massachusetts and am thrilled by this law!

    I also love AAM and the lively discussion on posts, but have never chimed in before because I’m not the typical reader. I’m a low earner who did not finish college. I’m also a minority woman. This law is for people like me. People like you all who get contacted by recruiters and earn six figures or close to it, cannot understand how frustrating it is to be capped by your own history. You can try to get higher paying jobs which you know you can do well, but if the employers finds out how little you’ve made historically, they don’t take your application seriously. So you continue to be stuck in low paying jobs.

    Here in Massachusetts, many jobs also require bachelor’s degrees — jobs such as admin assistant (secretary), receptionist, etc. So not only is there a degree barrier for jobs that don’t really need them, but there’s a salary history ball and chain. This law will remove one obstacle from bettering ourselves and achieving some measure of financial well being in an incredibly expensive state. You might say that we should simply get college degrees, but there’s a cost for that, too, and frankly not everyone needs or wants to go to college. I’m not suggesting that non-college-educated people are qualified to be engineers or scientists or what have you. Just that there’s much the lower classes can do to contribute to industry, and removing the barriers that prevent our contributions is a good thing.

    1. Noble*

      I’m happy for you. I know your minimum wage is also going up to $11/hr in January, highest state min wage in the country. I’m not familiar with cost of living in Mass though, but your comment mentioned expensive state. So I’m assuming its on the higher end (I’ve never been to Mass) but I really hope changes like these help to put you in a better position to earn more, and gain more experience to make you a better candidate through your career.

      1. Anonymous Educator*

        Massachusetts as a state isn’t that expensive to live in, but the major metropolitan area (Boston/Cambridge) is comparable to NY/SF in terms of rents (not quite there, but pretty close). There are some relatively affordable areas in the outskirts. Relatively, though. If you’re on minimum wage, not so much.

  26. Frauzie*

    I have witnessed in this economy for the past 5 years, that asking ones salary is common and I do not feel it is appropriate. 1) it is a negotiation when you find me a good asset to your company, not before, not to mention, to even judge the character by this is not balanced. that also tells me about the company or the recruiter. 2) Low balling also is common, and it is based on a Nationwide rate, when the economy is much worse, or even the cost of living ought to be considered.
    Start with a close high number (that you have researched), and /or Mid range. Negotiate the hours per week as well into those numbers. Otherwise, the negotiator, who likely is different from who interviewed, will “haggle” with a super low disadvantage to you. Respectfully, assert your experience, skills, education , and let your posture, manners, and attitude speak for itself, hopefully positive and assertive.

  27. But Wait There's More*

    There’s another component of the new Mass law: it will be illegal for a company to prevent employees from disclosing their salaries. This will also help maintain the comparable-work-for-comparable-salary paradigm. Further, people cannot “sign away” their rights regarding disclosure! This is already law in New Hampshire (RSA 275:37-41), as of January 1, 2015. Note: I am not a lawyer, nor do I play one online.

    1. Jerry Vandesic*

      But this is already protected by federal (NLRB) laws, so I’m not sure the impact will be all that significant. Is there something here that goes beyond federal law?

  28. Dzhymm*

    It’s a widely held belief that whichever party states the first number will lose the negotiation. This is why employers try so hard to get employees to name a number first, and why some employers/recruiters have their panties in a bunch over being forced to do the same.

  30. Alice*

    That’s a great thing to do. I was recently put off applying for a role because they wanted every salary I had ever earned. Just no.

Comments are closed.