April 26, 2018
The Salary History Ban is on the heels of the Ban the Box movement. Recently, the Ninth Circuit Court of Appeals held that employers cannot use an employee’s past salary to justify paying women less than their male counterparts under the federal Equal Pay Act.
The Equal Pay Act (“The Act”) is a labor law enacted in 1963 and prohibited employers from gender-based wage discrimination – paying men and women differently for the same work. The Act intended to correct the widespread wage gap between men and women in the workplace. The Act did allow employers to consider seniority, merit, quality or quantity of work, or “any other factor other than sex.” This meant that prior to the Ninth Circuit’s decision in Rizo v. Yovino, employers could use salary history when determining salary.
While the decision out of the Ninth Circuit did not explicitly set out how salary history may be used, it is a significant development in the law aimed at closing the wage gap and fighting wage discrimination. State and local laws are quickly creeping up banning inquiries into salary history. Currently, there are seven state-wide bans and seven local bans. Salary history bans are changing hiring practices and salary determinations across the nation – forcing employers to rely on market data to set pay, institute new policies, and most importantly – to focus on the candidate’s qualifications, aptitude, and experience.
Referenced Sources: Gabrielle Long, Franczek Radelet, P.C., Employers Can’t Use Salary History to Defend Pay Gap, JDSupra, https://www.jdsupra.com/legalnews/employers-can-t-use-salary-history-to-70441/. Susan Milligan, Salary History Bans Could Reshape Pay Negotiations, SHRM (February 16, 2018), https://www.shrm.org/hr-today/news/hr-magazine/0318/pages/salary-history-bans-could-reshape-pay-negotiations.aspx.
 29 U.S.C.S. § 206(d)
 No. 16-15372, 2018 U.S. App. LEXIS 8882 (9th Cir. Apr. 9, 2018)