The Salary History Ban: Your Guide to Dealing with This Dreaded Interview Question--GUSTO
It’s the interview question that makes millions of employers and candidates shudder. No, it isn’t about experience, references, or culture fit… not even about career growth expectations. It’s about (eek!) salary history.
Not the easiest thing to ask for, right? But employers rely on it as a way of understanding the market rate for specific roles and gauging an applicant’s skill level. It’s important to remember that there’s lots of baggage that goes along with asking for someone’s salary history—baggage that affects both the candidate and employer.
Here we’ll cover best practices for making sure your company complies with the new salary history laws, including an overview of where it’s active so you can see if it applies to you in the first place.
Let’s break it down.
What is the salary history ban?
Imagine you’re conducting a job interview. It’s going great, and you want to shift the conversation toward salary negotiations. Several things are running through your mind, like keeping the candidate excited about the role and staying within budget. So you hold your breath and ask the dreaded question: “How much are you currently being paid?”
Here’s the dilemma. If the candidate answers the question, they could risk anchoring their future compensation to their current salary—whether or not they’re being paid appropriately. Or if they refuse to answer, there’s a chance you may assume they make less than they actually do or even find them uncooperative.
In a survey of over 15,000 respondents, PayScale found that women who didn’t offer up their salary history were paid 1.8 percent less than women who did. On the flip side, men who didn’t reveal their previous salary were paid 1.2 percent more. This double standard between men and women may be the result of gender bias, according to PayScale. Clearly, something isn’t working.
The proposed solution? Ban the question altogether.
The salary history ban makes it illegal for employers to ask candidates how they are currently or were formerly compensated at work. What qualifies as “compensation” is different for every state and city (we’ll cover that part soon).
Why it’s being rolled out
Gender pay inequality continues to be a problem in the United States. A Glassdoor study showed that women still earn 76 cents to the dollar men earn.
The salary history ban is trying to tackle one part of the problem: to prevent current or previous pay inequality from following a person throughout their career. Determining a candidate’s compensation based on their salary history can perpetuate existing wage inequalities that are the result of gender bias or discrimination. So, some think it’s best to take salary history out of the equation altogether.
Where the salary history ban currently exists
Remember that this isn’t a nationwide ban. Below are some of the cities and states that have enacted the salary history ban so far:
California: Starting Jan. 1st, 2018, employers can’t ask for an applicant’s compensation history, either in writing or verbally. Compensation includes both salary and benefits. If reasonably requested, employers need to also provide a pay scale for the position in question.
Delaware: Since Dec. 14th, 2017, employers haven’t been allowed to ask for an applicant’s compensation history until after a job offer has been made and accepted by the applicant. Compensation is defined as monetary wages, benefits, and other methods people get paid.
Massachusetts: Starting July 1st, 2018, employers can’t screen applicants based on compensation history or ask for it. Compensation includes benefits, salary, and other types of payment. Employers are also banned from getting the information from the applicant’s current or former employer until after an offer has been officially accepted. Instead, employers have to publish salary ranges based on qualifications and skills related to the role.
New Orleans: As of June 2017, city agencies aren’t allowed to dig around for applicants’ pay histories.
New York City: As of October 31st, 2017, employers are barred from asking or searching for an applicant’s compensation history. This includes wages, benefits, and other forms of compensation.
Oregon: Starting January 1st, 2019, employers can’t ask for compensation history or screen applicants based on it. Compensation includes wages, salary, bonuses, benefits, fringe benefits, and equity-based payment. If a company violates this law, employees are owed unpaid wages.
Philadelphia: Despite being the first U.S. city to pass such a law, the bill is temporarily on hold because of a lawsuit filed by a local business. Therefore, it’s not currently enforced.
Pittsburgh: As of March 2017, city agencies cannot ask applicants for their pay histories.
Puerto Rico: As of March 2017, employers can’t ask about an applicant’s compensation history unless the applicant offers the information on their own, or a job offer has been offered and accepted by the candidate.
San Francisco: Starting July 1st, 2018, employers can’t ask applicants—contractors and subcontractors included—for their compensation history. Employers also can’t disclose a current or former employee’s salary history without that person’s explicit permission.
So what does this mean for you?
If your business isn’t located in any of the cities or states above, you’re in the clear (as of December 2017). If it does, there are a couple actions you should take.
First, review your hiring process. At no point should you require an applicant to disclose their salary history in writing or in an interview. Also, make sure related sections aren’t lurking in any internal hiring documents, like interview question templates or reference emails. Lastly, don’t rely on an applicant’s salary history, even if voluntarily disclosed, when determining whether or not to extend a job offer.
(Re)train your staff on the new law. Make sure your team is aligned on new hiring requirements and which questions are and are not appropriate. Double-check the statutes under your state or city’s law and ingrain it in your team.
Refrain from releasing salary information for past employees. Don’t release a former employee’s salary history without written authorization from that employee. There may be some exceptions to this rule, such as when salaries are publicly available or part of a collective bargaining agreement. Check your local and state laws to see what exceptions may apply.
A shift in mindset
Salary negotiations are uncomfortable for everyone involved, and gaining the candidate’s trust throughout the process is key to setting them up to be a rock star on your team. The good part? Simple language tweaks can easily achieve this.
For example, instead of asking for salary history, tell the candidate outright what the salary range is for the role, and then see if they want to continue the conversation. Keep in mind that the gender pay gap can still rear its ugly head even if people know the average salary range for the role, found a study from Hired. On average, women tend to ask for less than men, regardless of their experience.
The takeaway? Someone’s salary history should never affect their compensation in future roles. Before you ever bring your candidate into the office, research compensation standards for the role you’d like to fill and consider their skills, background, and education to determine a final offer. Take this data-driven approach and be fair and transparent; you’re bound to gain your candidate’s trust throughout this nerve-wracking (and exciting!) process.
About Tiffany Durinski
Tiffany Durinski is a content marketer, writer, and explorer of the world. Her mission is to get people fired up about technology through captivating storytelling.
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2018年07月04日
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在美国裁员中的年龄歧视问题-美国《反年龄歧视法》禁止企业对40岁及以上的员工进行年龄歧视
美国《反年龄歧视法》（The Age Discrimination in Employment Act）禁止企业对40岁及以上的员工进行年龄歧视。最近，两家高科技企业，Intel和IBM，都因为裁员中涉及年龄歧视而遭到公平就业机会委员会的调查。
Intel的情况是，在2016年的一波裁员中，2300名被裁员工年龄的中位数是49岁，而留下来的同行，中位数只有42岁。因此有员工已经向公平就业机会委员会投诉。按照程序，委员会将审核Intel关于裁员的法律文件，来确定员工一方是否有足够的证据，从而代表员工向法院起诉。如果委员会认为不构成年龄歧视，员工一方仍可以单独起诉公司。
而IBM的情况是，从2014年开始，IBM已经裁减了2万多名40岁及40岁以上的员工，占到了全部裁员人数的60%。委员会同样在调查IBM，但是IBM否认了年龄歧视的指控，表示公司是根据绩效和其他方法确定裁减人员名单。
《纽约时报》在之前的一篇报道指出[1]，这几年，向委员会投诉的年龄歧视的案件越来越多，2015年有20144件，2016年则达到21000件，已经占到了委员会全部受理案件的四分之一。然而，委员会真正认为证据充足并起诉到法院的案件数量却很少，比如2015年只有86件，低起诉率的其中一个原因是，最高院通过Gross v. FBL Financial Services, Inc[2]一案，在举证责任方面为劳动者胜诉设立了很高的门槛。
1989年，最高院曾在Price Waterhouse v. Hopkins一案中为混合动机案件设立了举证责任规则。混合动机指雇主的决定混合了合法的动机（比如员工绩效）和非法的动机（比如员工的性别和种族）。此时，雇员需要首先举证她因为雇主的非法动机（也就是该案中的性别因素）受到了歧视，此时举证责任转移到雇主，雇主需要证明，即使没有性别因素，雇主也会做出一样的决定。
但是在2009年，在涉及年龄歧视问题的Gross v. FBL Financial Services, Inc一案中，最高院认为，《反年龄歧视法》独立于《民权法案》，Price Waterhouse一案确立的举证规则也并不当然适用于年龄歧视的情况。通过仔细阅读法律条文，最高院认为，在年龄歧视案件中，劳动者首先必须证明年龄是雇主决策的主要因素（but-for，如果没有该事实的存在，事件就不会发生），这个举证要求不可谓不高。2009年，国会曾提出Protection Older Workers against Discrimination Act草案，要求年龄歧视案件的举证规则回归Price Waterhouse规则，但是因为受到商业群体等反对，草案最终没有被通过。
据报道，委员会的代理主席Victoria Lipnic已经将反年龄歧视作为委员会的优先处理的工作议题，且看委员会将如何处理这两起年龄歧视案件。
[1] Shownthe Door, Older Workers Find Bias Hard to Prove, https://www.nytimes.com/2017/08/07/business/dealbook/shown-the-door-older-workers-find-bias-hard-to-prove.html
[2] 557 U.S. 167
Overtime rule pushed to 2019; new 'regular rate of pay' calculation comingKate Tornone
The U.S. Department of Labor (DOL) plans to propose a new overtime regulation in January 2019, it announced in its latest regulatory agenda. The proposal, which would replace the Obama administration's proposed $47,476 salary threshold for overtime eligibility, was previously slated for October 2018.
In a separate item on its agenda, DOL announced its intent to amend regulations spelling out how employers must calculate workers' "regular rate of pay" for Fair Labor Standards Act purposes — a metric used to determine how much workers must be paid for overtime hours. A Notice of Proposed Rulemaking (NPRM) is scheduled for September.
DOL also announced plans to take a second stab at tip pooling rules, with that NPRM slated for August.
The overtime rule delay, while not entirely unexpected, could spell trouble for the Trump administration's plans. During a conference presentation in March, Tammy McCutchen, a former DOL Wage and Hour Division administrator from the Bush administration, warned attendees that they weren't out of the woods just yet with respect to the Obama-era overtime rule.
She predicted that DOL wouldn't hit its self-imposed October deadline and explained how a series of events following such a delay could ultimately put the $47,476 threshold into effect — with only 30 days' notice to employers. She said there's no reason for employers to panic just yet but recommended that businesses hold onto any plans they made in 2016 when it appeared that the original rule was going to take effect.
DOL's plan to change its "regular rate of pay" regulations, however, wasn't expected. The agenda doesn't make clear what changes the agency intends to make but the rules currently dictate how bonuses, deductions, premium payments and more factor into that rate. The rate is then multiplied by 1.5 to determine how much workers must be paid for overtime hours — those worked beyond 40 in a workweek.
Finally, DOL's plan to address tip pools is part of a larger and controversial effort that prompted Congress to amend the FLSA in March to forbid employers from pocketing workers' tips. The new rules are expected to rescind Obama-era rules that placed limits on tip-sharing arrangements.
While wage and hour used to be a relatively sleepy area of employment law, employers have seen drastic changes in the past decade, and more appear to be on the way. Still, NPRMs are rarely issued on time, so businesses may have more time to prepare than it appears. If delayed, employers can expect another update on these to-do items in the government's fall regulatory agenda.
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