The bad news, however, is that employment lawyers, salary negotiation experts and employee rights advocates say it is probably still getting asked in some cases — whether by naive or rogue hiring managers — and that violations of salary history questions posed behind closed doors could prove difficult to police.
“Enforcement is absolutely going to be an issue,” said Terry O’Neill, the executive director of the National Employment Lawyers Association, a group that serves attorneys who represent employees. “Enforcement of all anti-discrimination laws has always been an issue."
The state and local laws have proliferated widely since Massachusetts became the first state to pass such legislation in 2016. In September, salary history bans or laws that protect job candidates who refuse to answer questions about past pay will become effective in three more states: Illinois, Maine and Alabama. That will bring the tally of statewide bans to 14 plus Puerto Rico, according to the National Women’s Law Center; two more states, North Carolina and Pennsylvania, have bans in place for applicants to state agencies. (A range of cities and counties also have laws in place; Washington, D.C., and Montgomery County, Md., ban local government agencies from asking applicants about salary history.)
Experts say many employers are likely following the laws closely, eliminating the question from online and paper job applications and training their managers not to pose it in interviews. “Employers are taking it seriously,” said Cheryl Pinarchick, an attorney with Fisher Phillips in Boston who represents employers.
But some, she said, have been “slower to take that practical step they need to take to educate everyone in the hiring chain. There’s still a lot of folks in hiring positions who just don’t know.” The laws are new enough that the questions may still come up, especially at smaller employers without dedicated H.R. teams or in discussions behind closed doors. “It’s very hard to police,” Pinarchick said.
If candidates do get the question where it’s banned, experts say they should answer with a little deflection — and a lot of tact. You may not want to tell a potential employer in a job interview they’re doing something illegal — especially if it’s a job you really want.
“What you have to do is punt on the question ... like a politician who [answers] a different question,” said Linda Babcock, an economics professor at Carnegie Mellon University who studies negotiations and is the author of “Asking for It: How Women Can Use the Power of Negotiation to Get What They Really Want.” If it’s early in the process, Babcock suggests saying something like: “I would really like to learn more about the job to learn what’s entailed to really give a good answer.”
Calling out an interviewer for asking a banned question, said Kimberly Churches, chief executive of the American Association of University Women, "puts you in an offensive and defensive position,” she said. “You lose that ability of keeping things civil.”
If asked about salary history — whatever state you live in — her organization suggests saying something like “this position is not exactly the same as my last job. I’d like to discuss what my responsibilities would be here and then determine a fair salary for this job.” Another recommended response: “I’d appreciate it if you could make an offer based on whatever you have budgeted for this position, and we can go from there.”
Katie Donovan, an equal pay and salary negotiations expert in Boston who said she helped write the Massachusetts legislation, also recommended bringing up budgets. If an employer doesn’t go first with a salary range or asks about salary expectations, Donovan suggested saying: “I know you wouldn’t be interviewing if the job hasn’t been budgeted for and accounted for.”
Generally, lawyers say you can volunteer your own salary history and not be penalized — even if the employer can’t seek it out. Other laws say employers can ask the question after a job offer (with a compensation figure) is made — a stipulation that raised concerns from one expert. “They could lowball you to start and then ask about your salary history” in negotiations, said Babcock, suggesting that could take some “teeth” out of the laws.
She and other experts said the inability to ask about salary history is also likely to lead to more questions about salary “expectations,” which are permitted. While you may be forced to name a number you hope to make — backed up by research and homework, experts advised — asking for a range is another advisable step. A few states (California, Colorado and Washington) even now require employers to offer a minimum salary or pay range when asked.
Still, many employers continue to want employees to put the first number on the table, said Paula Brantner, a workplace consultant and the former director of Workplace Fairness, a nonprofit focused on employee rights. “We still haven’t had the mind shift where employers think they should go first. It’s kind of a game of chicken.”
If you want to report an employer for asking the question, state laws vary on where to complain, said Emily Martin, the vice president for education and workplace justice at the National Women’s Law Center. She suggests starting with the state human rights division — or whatever state agency is responsible for addressing employment discrimination — to inquire about where to take a complaint. If the banned question happens to still pop up in an online job application, she said, be sure to get an image.
"It’s not a perfect solution, but the hope is that by insuring that it’s not a standardized question,” it will help close the pay gap, Martin said. She said it’s striking how many states have already picked up on the idea. “People understand this as an issue that goes to fundamental fairness about work and power and recognize the idea that you should have some control over this information.”