Colorado, Washington Newest States to Join Salary History Ban Trend
Author: David B. Weisenfeld, XpertHR Legal Editor
May 30, 2019
Colorado and Washington have each enacted strict salary history question bans that prohibit employers from asking about or seeking a job applicant's wage history. This marks 10 states with statewide salary history bans applicable to private employers, all passed within the last three years.
Colorado Pay Equity
The Colorado salary history inquiry ban is part of the Equal Pay for Equal Work Act, signed by Gov. Jared Polis on May 22. It is a broad pay equity law that applies to all employers employing any employees in the state, and takes effect January 1, 2021.
According to a 2018 report released by the Institute for Women's Policy Research and The Women's Foundation of Colorado, women in Colorado earn 86 cents for every dollar men earn. The disparity is even greater with other groups, as Latinas earn 53.5 cents and black women earn 63.1 cents for every dollar earned by white men.
Under the law, employers must disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly pay or salary. They also must include a general description of all the benefits and other compensation to be offered.
A person victimized by an employer's noncompliance has the right to a jury trial and may obtain relief for back pay for the entire time the violation continues, up to three years.
The new law prohibits discrimination based on sex or other protected characteristics by paying an employee of one sex less than an employee of another sex for doing substantially similar work unless the employer can show that the pay differential is based on nondiscriminatory factors, including:
- A seniority system;
- A merit system;
- A system measuring earnings by production quantity or quality; and
- The geographic location where the work is performed.
As part of the salary history ban provision, an employer may not:
- Seek or rely on a prospective employee's salary history to determine his or her pay;
- Discriminate or retaliate against an applicant for failing to disclose his or her salary history;
- Discipline, discriminate, intimidate or interfere with an employee or other person for inquiring about, disclosing or discussing the employee's pay rate; or
- Ban an employee from disclosing his or her pay rate as a condition of employment.
Washington Salary History
Moving to the Pacific Northwest, Washington also has a new salary history law. Effective July 28, 2019, the Washington Equal Pay and Opportunities Act prohibits an employer from seeking a job applicant's salary history either from the applicant or from his or her current or former employer. The salary history ban applies to all Washington employers regardless of size.
The Act also bans employers from requiring that an applicant's prior wage or salary history meet "certain criteria." However, it does permit employers to confirm an applicant's salary history:
- If the applicant voluntarily discloses his or her wage or salary history; or
- After the employer has negotiated and made an employment offer with compensation to the applicant.
Washington employers with 15 or more employees must also, upon an applicant's request, provide the minimum wage or salary for the position for which the applicant is applying.
And if an employer offers an internal transfer or a promotion, it must provide the salary range for the new position being offered. If no wage scale or salary range exists, the Act requires employers to provide "the minimum wage or salary expectation" that was set by the employer before posting the position, or that was set before offering the transfer or promotion to a current employee.