Salary History Ban

What the laws prohibit

The details vary, but most salary history bans contain some combination of these rules:

• No asking. Employers and their agents (including recruiters and staffing firms) may not ask applicants, orally or in writing, about their current or prior pay and benefits. That covers application forms, phone screens, interviews and background checks.
• No searching. Employers may not seek pay history from current or former employers or public sources.
• No relying. Many laws bar using pay history to decide whether to make an offer or how much to offer, even if the applicant volunteers it. Others allow use of voluntarily disclosed history to set pay.
• No retaliation against an applicant who declines to share pay history.

Most laws protect applicants, not current employees being considered for internal moves, although some cover both.

Where bans apply

Massachusetts passed the first statewide ban, which took effect in 2018. Since then, states including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington, among others, have adopted bans covering private employers. Some states ban the question only for public agencies. Cities and counties such as New York City, Philadelphia and San Francisco have their own ordinances; Philadelphia's was upheld by a federal appeals court in 2020 after a free speech challenge.

The list grows most years, and a handful of states have gone the other way and preempted local bans. Because coverage depends on where the job is, where the applicant is, and sometimes where the employer is based, most multi-state employers simply stop asking everywhere.

At the federal level, there is no general salary history ban for private employers. Federal courts are split on whether prior pay can justify a pay difference under the Equal Pay Act; the Ninth Circuit held in 2020 that prior salary alone is not a valid defense. Federal agencies themselves are barred by an OPM rule from using salary history to set federal employees' pay.

What recruiters can still ask

Bans stop questions about the past, not about the future. In nearly every jurisdiction you may ask:

• "What are your salary expectations for this role?"
• "The range for this position is $52,000 to $61,000. Does that work for you?"
• Questions about competing offers, in some places, if you do not ask what the current employer pays.
• Questions about deferred compensation or unvested equity the candidate would forfeit, which some laws allow so you can make them whole.

If a candidate volunteers their salary without being asked, do not follow up with more questions, and record in the file that it was volunteered. In states that ban relying on it, set the offer from your salary band and internal equity, not from what they told you.

A simple phone screen script works best: "Our range for this role is X to Y, based on experience and location. Is that in line with what you are looking for?" It is legal almost everywhere and faster than haggling.

How it connects to pay transparency

Salary history bans and pay transparency laws come from the same goal. History bans stop employers anchoring an offer on a number that may reflect past discrimination; transparency laws require employers to show the pay range up front. Together they push employers toward setting pay by the job, not by the person's last paycheck. Several states now require both, and the EU Pay Transparency Directive includes a pay history ban for employers in the EU.

Pay set from prior salary is one of the most common sources of unexplained gaps found in a pay equity audit. Two people hired into the same role a month apart can end up thousands of dollars apart for years simply because one was underpaid at a previous job.

Updating your process

1. Remove "current salary" and "salary history" fields from application forms, ATS templates and agency submittal forms.
2. Change phone screen and interview guides to ask about expectations, and train recruiters and hiring managers.
3. Tell staffing agencies and RPO partners in writing that they may not collect or pass on pay history for your roles.
4. Check background check and verification vendors do not report salary history where it is banned.
5. Base offers on documented ranges and internal equity, and keep notes on how each offer was set.
6. For high-volume hourly roles, post the rate. Most hourly candidates choose by rate and shift, and showing it removes the question entirely.

This page is informational, not legal advice, and laws vary by state and city.