By Susan Richards Salen, Esquire
(703) 790-6240 - SSalen@reesbroome.com
Effective October 1, 2020, Maryland employees have more power in salary negotiations with employers. House Bill 123 amends certain provisions of Maryland’s Equal Pay for Equal Work Law. HB123 requires that employers provide a wage range for a position upon request of the applicant and it also creates a salary history ban. HB14 protects employees from retaliation for asking about their own wages. Prior to the amendment, the law only protected employees from asking about co-worker wages.
First, under HB123, if the applicant requests, an employer must provide the applicant with the wage range for the position for which the applicant applied. An employer may not retaliate against the applicant for the request by not interviewing the applicant, not hiring the applicant, etc.
Second, an employer may not ask an applicant for his/her wage/salary history by any means (orally, in writing, or from an agent or from the current or former employer of the applicant) and may not rely upon the applicant’s wage history for the purpose of screening the applicant for employment or in determining the wages for the applicant. This broad language prohibits the employer from doing indirectly that which it cannot do directly. In other words, the employer cannot have a background agent ask for information concerning the applicant’s wage/salary history. The same anti-retaliation provisions apply.
After the employer makes an initial offer of employment with an offer of compensation to an applicant, the employer may then rely upon a wage history voluntarily offered by the applicant to support the applicant’s request for a higher wage/salary. This means that if employer offers X and the applicant counters with Y, the employer may ask the applicant to provide salary information to justify a higher wage request. In addition, the employer can then confirm the salary information offered by the applicant to support that higher wage request.
An applicant may voluntarily share salary/wage history under HB123. However, an employer may not rely upon that voluntarily shared information, if doing so will create an unlawful pay differential based on sex or gender identity. In other words, if the salary history results in payment of one sex or gender being paid less, the higher wage must still be paid.
Applicants do not have a private right of action, but instead may file a complaint with the Maryland Labor’s Commissioner of the Division of Labor and Industry. Of course, an employer cannot retaliate against any employee who filed a complaint or participated in investigation related to a complaint. The Commissioner can issue an order compelling compliance and may impose civil penalties of $300 or $600 or more if merited.
What should Maryland employers do:
- Remove any questions on applications regarding salary/wage histories.
- Make sure that employees engaged in recruiting understand that they cannot require wage history as part of initial interview process and that the discussion is post-offer and limited.
- Make sure that employee manuals do not contain restrictions on discussion of wages and consider including general anti-retaliation language in employee manuals.
- Employers should establish set wage ranges for all positions. In this way, the wage range will have been determined before a request is made and avoid or provide support against potential discrimination claims.
Please contact Susan Richards Salen, Esquire, at 703-790-1911 or ssalen@reesbroome.com if you have questions or need assistance in complying with this new law.