New Maryland Law Prohibits Employers from Asking Job Applicants for Wage History

On Behalf of | September 29, 2020 | Employment Discrimination

For job applicants, disclosing their current or prior salary can be one of the most anxiety-inducing parts of interviewing for a new job. Beginning on October 1, 2020, however, a new Maryland law will go into effect, prohibiting employers from asking job applicants for their wage history or relying on wage history in making hiring decisions or setting pay.

The new wage history ban amends Maryland’s Equal Pay for Equal Work law, adding to existing protections against wage discrimination on the basis of sex or gender identity. Specifically, the new law will:

  • Require an employer to provide a wage range for the position in question upon an applicant’s request;
  • Prohibit retaliation against, or refusal to interview, hire, or employ an applicant who does not provide their wage history or who requested the wage range for the position in question;
  • Prohibit an employer from relying upon an applicant’s wage history in screening, hiring, or determining pay; and
  • Prohibit an employer from asking for wage history, whether orally, in writing, or through an employee or agent or from a current or former employer.

Notably, under Maryland’s wage history ban, a job applicant can still volunteer to provide their salary history. After making a conditional offer of employment to the applicant, the employer would be permitted to rely on the voluntarily-provided wage history to offer the applicant a higher salary, as long as the higher wage does not create an unlawful pay differential based on sex or gender identity.

If a job applicant believes an employer has violated the wage history ban, the applicant may submit a complaint to the Maryland Department of Labor’s Commissioner of Labor and Industry. If an employer is found to have violated the law, the Commissioner must issue an order compelling compliance. The Commissioner may also, in his or her discretion, assess a civil penalty of up to $300 for a second violation, and assess a civil penalty of up to $600 for each subsequent violation.

With the passage of the wage history ban, Maryland joins a growing number of states and localities to have enacted bans prohibiting employers from asking for previous salary information. Because women, and women of color in particular, tend to earn less than their white male counterparts for the same work, reliance on an applicant’s salary history to determine future pay can perpetuate wage discrimination from one job to the next. Moreover, one study found that when women decline to disclose their salary history during a job interview, they tend to earn 1.8 percent less on average than women who disclose their prior salary history. In contrast, men who decline to answer the same question tend to get paid 1.2 percent more on average than men who disclose their prior compensation—demonstrating the double standard that penalizes women for engaging in the same behavior for which men are rewarded.

Maryland’s wage history ban is a promising step toward eliminating these gender and racial pay disparities, and a recognition that employees should be paid based on their skills, experience, and/or fit for the job.

If you believe you have experienced pay discrimination in your employment, you should consult with an attorney to determine what your legal options are. Sanford Heisler Sharp has experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.