Corporate Counsel Publishes Salary History Ban Article by Gary McLaughlin

Corporate Counsel has published the article “Salary History Bans Create New Challenges,” written by Akin Gump labor and employment partner Gary McLaughlin. The article discusses new laws appearing in jurisdictions across the Unites States that prevent employers from seeking information pertaining to a job applicant’s prior salary history.

McLaughlin writes that California and New York City both enacted such laws last year, joining San Francisco, Philadelphia, Delaware, Massachusetts, Oregon and Puerto Rico, which have passed similar laws. Employers, he predicted, “should expect that salary ban jurisdictions will only continue to increase in the foreseeable future.”

While the statutes in California and New York City share some similarities, McLaughlin notes that the New York City law includes some safe harbors not present in California, including allowing employers “to engage in discussion with an applicant about his or her salary expectations.” It also “carves out applicants for internal transfer or promotion with their current employer from coverage.” Meanwhile, California’s law, as McLaughlin writes, “goes further than others by requiring an employer to provide a pay scale for the position upon ‘reasonable request’ of an applicant,” which he says, “presents various challenges and uncertainties.”

Salary history bans, McLaughlin observes, “will require employers to take a number of proactive steps to ensure their hiring processes comply.” He suggests a review of employment applications and recruiting materials “to ensure that any questions about salary history are removed.” He also advises the training of certain employees involved in the hiring and recruiting process and getting assurances from headhunters and other third-party recruiters “that they not request or provide salary history information.”

Finally, McLaughlin writes that salary history bans “should be considered in their broader context, in particular the increased scrutiny of gender pay disparities.” Employers would be wise, he says, to make sure their current compensation structures do not contain disparities that cannot be explained “by bona fide job-related factors.”