Delaware Salary History Ban Again Highlights Trending Issue

Author: David B. Weisenfeld, XpertHR Legal Editor

June 21, 2017

A new Delaware law will prohibit employers from screening job applicants based on their salary history and from asking a current or former employer about an applicant's compensation history. Delaware Gov. John Carney signed the law on June 14, and it will take will take effect in December 2017.

In addition to banning salary history inquiries, the law makes it an unlawful employment practice for an employer to require that a prospective employee's past compensation satisfy minimum or maximum criteria. However, the law does not restrict employers from taking salary history into account if applicants voluntarily disclose their past earnings.

The Delaware law also shields an employer from liability if it can show that it instructed one of its agents (who is not an employee) to comply with the salary history inquiry prohibition and the agent failed to do so.

In addition, the measure does not prohibit an employer or an employer's agent from seeking an applicant's compensation history after a job offer has been extended and accepted, but only for the sole purpose of confirming the applicant's salary history.

Any employer that violates the Delaware law will be subject to a penalty of at least $1,000 and no more than $5,000 for a first offense, and up to $10,000 for each subsequent violation.

The Delaware law comes on the heels of the Oregon Equal Pay Act, signed June 1, which also includes a broad salary history inquiry ban. Massachusetts, New York City and Philadelphia are among the other jurisdictions to pass similar restrictions.

All of these measures aim to close the wage gap between male and female applicants for doing the same or similar work. The rationale is that if employers may not ask salary history questions, then applicants who may have been underpaid in the past will not have their compensation history used against them.