June 11, 2021
Connecticut became the latest state to prohibit employers from asking job applicants about their salary histories, while the Senate failed to move forward on a bill that would have created similar prohibitions at the federal level.
The Connecticut law, H.B. 6380, prohibits employers from asking prospective employees about their previous wages unless the individual has voluntarily disclosed such information. Additionally, the law specifically allows employees to discuss wages with other employees and prohibits employers from restricting such discussions. Finally, the law requires employers to provide a prospective employee the expected pay range for the position in question, either at the request of the prospective employee or when an offer is given, whichever comes first.
The legislation is silent on whether an employer may ask about salary expectations, thus creating legal uncertainty around the one mechanism many employers have used to ensure they do not underestimate an offer to a prospective employee.
The law becomes effective October 1, 2021 and provides a private right of action for any violation. Under the law, an employer can be liable for compensatory damages, punitive damages, and attorney’s fees.
Meanwhile, the Paycheck Fairness Act (PFA; H.R. 7), a bill that would similarly create prohibitions on salary history inquiries on the federal level, fell 11 votes short of the 60 votes needed to end a filibuster in the Senate after passing the House in April, with all Republicans opposed. HR Policy urged Congress not to pass the bill, which, in addition to banning salary history inquiries, would significantly increase employer liability in gender pay discrimination lawsuits, without adequately addressing pay equity issues. In the House, the Association supported a substitute measure that would have addressed most of the issues raised by the PFA, including a salary history ban that would have allowed discussion of expectations.
Outlook: Connecticut joins several other states—nearly half—that already have some form of salary history ban law, along with several localities. The Paycheck Fairness Act’s failure in the Senate means a federal measure is unlikely to happen soon, provided the filibuster rule remains in place.