Salary History Bans and Compensation Questions During Hiring

A salary history ban stops an employer from asking what a candidate earned in an earlier job, and in many places from relying on that figure to set a new one. These laws are entirely state and local. There is no federal salary history ban, so whether the question is lawful depends on where the job is located, where the applicant lives, and sometimes on the size of the employer. The rules also split on a question that decides most real cases: what happens when the candidate offers the number without being asked.

What these laws actually prohibit

The core prohibition is narrow and easy to state. A covered employer, and usually its agents — recruiters, staffing firms, background screeners — may not ask an applicant about prior wages, salary, commissions, bonuses or benefits. Application forms cannot contain the field. Third-party screening reports cannot be ordered for that purpose.

Beyond that core, the statutes diverge. Some reach only the inquiry. Others add a separate prohibition on using prior compensation to set pay, which is a much bigger constraint because it survives even a candidate who volunteers the figure. A third group bars an employer from screening applicants against a minimum or maximum prior-pay threshold, or from retaliating against a candidate who refuses to answer.

Note: Coverage is drawn differently across jurisdictions. Some laws apply to all private employers, some carve out very small employers, and several apply only to public agencies. A few city ordinances sit inside states with no statewide rule at all.

Why there is no federal version

Congress has not enacted a salary history ban. The federal statutes that touch pay do something different. Title VII, codified at 42 U.S.C. § 2000e and following, prohibits pay discrimination based on race, color, religion, sex and national origin. The Equal Pay Act requires equal pay for equal work between men and women in the same establishment, subject to four defenses: seniority, merit, a system measuring earnings by quantity or quality of production, and any "factor other than sex." The Equal Pay Act is enforced by the Equal Employment Opportunity Commission, while the underlying wage and hour statute is administered by the Wage and Hour Division of the Department of Labor.

That last defense is where prior salary became a federal issue. Courts have split on whether an employee's earlier pay can be a lawful "factor other than sex." The Ninth Circuit, sitting en banc in Rizo v. Yovino (2020), held that prior pay alone cannot justify a wage gap under the Equal Pay Act, reasoning that using it perpetuates whatever discrimination produced the earlier figure. Other circuits have allowed prior pay in combination with other factors. Because that split has not been resolved nationally, the practical answer for a multi-state employer is that prior-pay reliance carries litigation risk everywhere and is flatly unlawful in some places. The EEOC's laws and guidance library is where the federal enforcement position on compensation discrimination is published.

The four ways state laws differ

When comparing jurisdictions, four variables explain nearly every difference in outcome. Read a statute for these before reading anything else.

California, Massachusetts, Colorado, Washington, New York and New Jersey are frequently cited examples of the broader model, though each differs in detail and each has been amended since enactment. Several major cities regulate independently; Philadelphia's ordinance, which barred both inquiry and reliance, was upheld against a First Amendment challenge by the Third Circuit in Greater Philadelphia Chamber of Commerce v. City of Philadelphia (2020). Because amendments are frequent, treat any list of covered states as a starting point and confirm the current text with the state labor agency.

The voluntary disclosure trap

Candidates volunteer prior pay constantly — in a cover letter, in answer to "what are you looking for," or during a friendly conversation with a hiring manager. What the employer may do next is the single most litigated question in this area.

Under the narrower statutes, an unprompted disclosure releases the employer to consider and even verify the figure. Under the broader ones, disclosure changes nothing: the employer still may not use prior pay to justify the offer, and the fact that the applicant spoke first is not a defense. A hypothetical illustrates the gap. Suppose a candidate emails a recruiter, "For context, I'm at $X now." In a narrow-ban state, the recruiter may record it. In a broad-ban state, the safer practice is to reply only about the posted range and to leave no record of the number in the file used to set pay.

Watch out: An interview note that says "matched prior comp" can become the central exhibit in a pay-equity claim, because it converts a general pay decision into documented reliance on a prohibited factor.

What employers may still ask and do

These laws do not stop an employer from talking about money. They redirect the conversation from history to expectations and market value.

• Asking what compensation the candidate is seeking, and what range would make an offer acceptable.
• Stating the posted range for the role and asking whether it works.
• Asking about objective qualifications — years of experience, certifications, revenue managed, territory size.
• Discussing unvested equity or a bonus the candidate would forfeit, where the jurisdiction permits it.
• Verifying compensation after an offer is accepted, where the statute allows post-offer confirmation.
• Setting pay by internal equity, published market surveys, geography and a documented job architecture.

Many of the same statutes that ban the history question also require an employer to disclose a pay range — in a posting, on request, or at the offer stage. That pairing is deliberate: legislatures removed the employer's information advantage and replaced it with a published number. Employers writing policy in this area often update recruiting scripts and application forms at the same time they revise the compensation section of their employee handbook, because inconsistent language across the two documents is a common source of complaints.

Common questions

If I refuse to answer, can they pull the offer?

In jurisdictions with a ban, retaliating against an applicant for declining to disclose prior pay is generally itself a violation, and several statutes say so expressly. Where no ban applies, an employer may lawfully treat the refusal as a factor. The practical move in either case is to answer with a target range rather than a flat refusal, which keeps the conversation moving without supplying a history figure.

Does a ban apply if I work remotely from a covered state?

Often yes, but not always. Some statutes reach any position that could be filled by someone working in the state; others tie coverage to where the employer operates or where the job is based. Multi-state employers frequently apply the strictest rule everywhere rather than run parallel scripts. Confirm the reach of the specific statute with the state labor agency before assuming remote work removes coverage.

Can a background check company report my old salary?

Where the statute covers agents and third parties, ordering a report for that purpose is treated the same as asking directly. Consumer reporting is separately regulated at the federal level, and the Consumer Financial Protection Bureau publishes material on what employment-related reports may contain and what notice you must receive before one is used against you.

Do these laws apply to internal promotions?

Usually not to your current pay with the same employer, since the employer already knows it. Some statutes do regulate transfers between affiliated entities. The wider issue for internal moves is comparing your new pay against colleagues in the same role, which is an equal pay question rather than a salary history one, and it is analyzed under Title VII and the Equal Pay Act.

Working through it in order

1. Identify the governing jurisdiction. Find the state and, separately, the city or county where the role sits. City ordinances sometimes exist where no state law does.
2. Read for the four variables. Coverage, inquiry versus reliance, voluntary disclosure, and enforcement. Those four decide almost every question.
3. Fix the paperwork before the conversation. Remove prior-pay fields from applications, screening questionnaires and recruiter intake forms.
4. Move to expectations. Train interviewers to ask about the target range and to state the posted range, and to stop taking notes on prior pay.
5. Document the basis for the offer. Write down the experience, market data and internal comparisons behind the number, so the file shows what the pay was actually based on.
6. Keep the record. Pay-decision records are the evidence in a later dispute, and are also what a compensation audit relies on.

Applicants who believe an employer relied on prior pay in a way that produced a discriminatory wage can raise it with the state labor agency or, for a discrimination theory, with the EEOC. Employees who want to compare notes with colleagues about pay should know that group discussion of wages carries its own federal protection, described in our explainer on protected concerted activity in workplaces without a union. Candidates weighing an unpaid position against a paid one will find the separate federal test in our piece on when an intern or trainee must be paid, and anyone comparing total compensation should factor in the continuation-coverage rules described in our explainer on health coverage after employment ends.