State and local governments throughout the country have increasingly adopted laws and regulations that prohibit employers from inquiring about a job applicant’s salary history during the interview process.
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Wisconsin has taken the opposite approach by enacting a law that specifically allows employers to ask about a candidate’s salary history and prevents local governments from passing laws that prevent such questions by employers.
Nationwide Trend
To date, at least 17 states (including California, Illinois, and New York) and a number of local governments have enacted laws that preclude employers from asking about employees’ salary histories on applications or during the hiring process. The number will likely grow as other state and local governments follow suit and enact similar laws.
The basis for salary history bans is pretty straightforward. Potential employees who earned less in previous jobs are more likely to accept lower pay and benefits than those who earned more. When employers have salary history information, they are more likely to offer lower pay and perpetuate wage disparities among lower-earning employees. Salary history bans are designed to eliminate the disparities and end the perpetuation of low pay when employees change jobs.
Wisconsin’s Ban on Salary Bans
Wisconsin and at least one other state (Michigan) have taken the opposite approach and enacted laws that specifically permit employers to inquire about an applicant’s pay history during the interview process. Proponents argue:
- Having uniform employment laws reduces the difficulty employers with multistate operations face when trying to navigate the various statutes in different jurisdictions.
- The government shouldn’t interfere in the hiring process. Instead, it should allow employers and employees to negotiate without interference.
In 2018, Wisconsin enacted a law that specifically allows employers to “solicit information regarding the salary history of prospective employees.” The law also precludes local governments from enacting laws that prohibit inquiries about a job candidate’s salary history:
The legislature finds that the provision of an employer right to solicit salary information that is uniform throughout the state is a matter of statewide concern and that the enactment of an ordinance by a city, village, town, or county that prohibits an employer from soliciting salary information would be logically inconsistent with, would defeat the purpose of, and would go against the spirit of this section. Therefore, this section shall be construed as an enactment of statewide concern for the purpose of providing an employer right to solicit salary information that is uniform throughout the state.
Wisconsin’s law makes it clear that employers have the right to inquire about an applicant’s salary history during the hiring process, and local governments can’t override that right by enacting regulations.
Bottom Line
Nothing prevents a Wisconsin employer from asking about a potential employee’s salary history. If the employer has operations in other states, however, it should become familiar with laws in those jurisdictions that may prohibit such inquiries.
Justin Lessner is a partner with Axley Brynelson LLP in Madison, Wisconsin. He can be reached at jlessner@axley.com.