Should Colorado Employers Stop Asking for Salary History?

New laws elsewhere raise the profile of employers’ use of prior pay as a potential discrimination risk

Despite several new laws across the U.S. prohibiting employers from asking applicants about their prior salaries, Colorado might be in the eye of the storm — for now.
Many pay equity law proponents say using an employee’s salary history to determine pay helps perpetuate a gender pay gap between men and women as workers move from job to job. Those concerns helped spur state or citywide bans on pay history inquiry by employers, with the latest being signed into law by New York City Mayor Bill de Blasio on May 4. Massachusetts has a ban on the salary history question effective next summer, and seven other state legislatures are considering similar laws, but Colorado isn’t one of them.
Still, legal and human resources departments in Colorado might be weighing the value of asking applicants for their salary history against the risk of pay discrimination lawsuits.
This legislative session, Colorado didn’t consider banning employers from asking for salary history. But last year’s House Bill 1666 passed in the House before dying in the Senate kill committee. If passed, it would have made it an unfair labor practice for an employer to ask job applicants about any past salary information unless the employer provided a salary range for the position.
Employers can ask for salary history in Colorado, “but they need to be clear on why they are asking about salary history,” said Sybil Kisken, a partner at Davis Graham & Stubbs who practices in labor and employment law. “The issues are: do you ask for salary history to begin with, and if so, what do you do with that information? What relevance does that have in your hiring process?”

To read this story and other complete articles featured in the May 15, 2017 print edition of Law Week Colorado, copies are available for purchase online.