Delaware Joins Growing Number of States and Bans Pay History Inquiries

On June 14, 2017, Delaware’s governor John Carney signed into law House Bill 1 enacting a pay history inquiry ban similar to those enacted in Massachusetts, New York City, Oregon, Philadelphia, and Puerto Rico. A number of other states have provisions relating to pay history as well. In California, for example, employers are prohibited from pointing to an employees’ prior salary, by itself, to justify a disparity in compensation.

The Delaware law aims to eradicate the pay disparity between men and women by prohibiting employers from asking applicants about their pay history until AFTER a conditional offer of employment has been made. At that point, Delaware employers are allowed to discuss and negotiate compensation expectations provided that the employer does not request or require the applicant’s compensation history.

After an employment offer has been made and compensation terms have been spelled out, the law allows for the confirmation of salary history information.

To help protect employers, the law provides a safe harbor for those who can demonstrate that they informed their recruiters or hiring personnel of the prohibitions of the law and instructed them to comply. This provision was included to address employers’ concerns about liability when using outside recruiters, especially those located outside of Delaware, because they often operate outside the direct control of the employer and may not be fully aware of this new Delaware law.

Delaware employers should review their hiring practices to ensure they are in compliance with House Bill 1 and that all employees and agents involved in hiring understand their obligations.

Penalties for violators run between $1,000-$5,000 for the first offense and $5,000-$10,000 for each subsequent violation.

Delaware’s pay history inquiry ban will take effect on December 14, 2017.

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