Delaware: Employers Now Prohibited From Asking Job Applicants for Salary History

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All Employers with DE Employees

EFFECTIVE

December 14, 2017

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Governor John Carney recently signed into law a new regulation prohibiting employers from inquiring into a job applicant’s salary history.  This measure, similar to those enacted in Oregon, Massachusetts, New York, and Philadelphia1, is intended to help curtail the gender wage gap by encouraging employers to consider factors other than past compensation history when determining pay.

Specifically, the new regulation prevents employers from:

  • Screening applicants based on compensation (e.g., requiring an applicant’s prior compensation rate to satisfy minimum or maximum criteria)
  • Seeking out compensation information from the applicant or the applicant’s current or former employer

“Compensation” includes pay, benefits, and “other forms of compensation.”

Like other salary history inquiry bans, this regulation does not forbid applicants from voluntarily disclosing their prior compensation.  Employers may discuss or assess compensation based on prior salary history if the applicant voluntarily supplies that information.  If the applicant chooses not to disclose salary history, employers may still discuss or negotiate compensation for the prospective employees, so long as salary history information is not requested or required to be provided.

Employers are permitted to request salary history in one specific scenario: after an offer of employment containing the terms of compensation has been extended, and if that salary history information is used for the sole purpose of confirming the compensation history.

In addition, employers who are concerned about potential exposure through third-party recruiters or staffing agencies can breathe a little easier.  If an employer can demonstrate that a third-party agent was informed about this regulation and instructed to comply, the employer may not be liable for noncompliant acts performed by the agent.

1 Note that Philadelphia’s salary history ban is now on hold due to litigation recently brought forth by the Chamber of Commerce of Greater Philadelphia.  Delaware’s salary history ban may face similar legal challenges prior to its effective date in December 2017.

Action Items

  1. Read the text of the bill here.
  2. Train hiring and payroll staff to eliminate inquiries into, and compensation decisions based on, prior wage and benefit history.
  3. Revise any forms, policies or procedures that require verification of prior salary history until after an appropriate offer of employment has been extended.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

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