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Maryland Bans Another Box from Employment Applications (and Discussions)

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

September 22, 2020

In Maryland, if your employment application includes criminal history questions, then you are not paying attention to Shawe Rosenthal’s communications. As we advised in an E-Lert, “Ban the Box” (the little box asking about criminal history that applicants check off) became the law in Maryland effective February 29, 2020.

So, listen up NOW because there are more boxes to ban from a Maryland employment application effective October 1, 2020.  As of that date, applicants may not be asked about their pay history on an application. You also cannot ask about prior pay during employment interviews or rely on prior pay (with one exception I’ll describe later). That’s right. You can’t find out what applicants are making in the job that they are leaving, which often is helpful information in deciding what to offer. Employers also cannot use “backdoor” methods to obtain pay history, like calling a prior employer or asking a friend with inside info. Make sure your managers are trained not to ask about salary history. (By the way, stop providing this information in response reference checks from Maryland companies if you have done so in the past since the caller isn’t supposed to be asking.)

Please also be aware that this law provides that if applicants request information on the pay range for the position, you have to provide the information. Yes, they get to know your top range number right from the start. But if you don’t have a pay range – if there is a single set salary – then you needn’t provide one (you simply can’t).

The law does provide an exception where salary history is, in the eyes of our elected officials, relevant: specifically, after a “conditional offer” of employment is made, employers are allowed to rely on “voluntarily-provided” wage history but only if this is provided in order to support a higher wage than initially offered. So, if an applicant is trying to negotiate for more, and they decide to disclose their prior salary, the employer can rely on that information in deciding whether to offer more money. But note that that you are not allowed to rely on this information if that higher wage offer would create a pay disparity based on gender or gender identity (in other words, don’t violate that equal pay law).

Do not fret, however, because the law makes clear that nothing in it should be read to prohibit applicants from voluntarily sharing their pay history with you. Sensible stuff. But if disclosed, you cannot rely on the information in deciding on pay (except as noted above to agree to pay more).

Of course, employers still may ask applicants what they are looking for by way of compensation. For what that’s worth!

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