Joining a number of other states, including Massachusetts, Connecticut, and Vermont here in New England, Maine has enacted legislation prohibiting employers from seeking salary history information from prospective employees. Signed by Governor Mills on April 12, 2019, “An Act Regarding Pay Equality” supplements Maine’s Equal Pay statute and states that an employer may not “use or inquire about the compensation history of a prospective employee from the prospective employee or a current or former employer of the prospective employee unless an offer of employment that includes all terms of compensation has been negotiated and made to the prospective employee, after which the employer may inquire about or confirm the prospective employee’s compensation history.” The Act also amends the Maine Human Rights Act and provides that an employer’s inquiry, whether direct or indirect, about a prospective employee’s compensation history before an offer of employment has been made may be used as evidence of unlawful employment discrimination.
The Legislature expressly noted that wage inequality is an ongoing issue in the State of Maine and “that when employers base compensation decisions on compensation history of a prospective employee, it directly perpetuates this wage inequality.” In passing the Act, the Legislature expressed its intent “to promote the payment of equal compensation for comparable work on jobs that have comparable requirements relating to skill, effort and responsibility and to prevent unlawful employment discrimination with respect to compensation.”
The Act contains some exceptions that would allow an employer to inquire about compensation history after an offer of employment that includes all terms of compensation has been made to the prospective employee; if a state or federal law requires disclosure or verification of compensation history for employment purposes; or if the prospective employee voluntarily discloses compensation history without prompting from the employer, in which case the employer or employment agency may seek confirmation of such information prior to an offer of employment.
The Act provides for penalties between $100 and $500 per violation and also provides for a private right of action by the affected employee or an action by the Department of Labor on behalf of the affected employee. The new statutory language, which is included in 5 M.R.S. §4577 and 26 M.R.S. §628-A, can be found here.
The new law will go into effect in September 2019. Employers should review and update application forms to ensure that they do not call for salary history information. Employers should also be sure to advise managers and other personnel who may conduct interviews that they should not ask about or otherwise seek salary history information from prospective employees.