Salary History Ban in Arkansas: What Employers Can Ask

Federal law does not prohibit salary history inquiries at the national level. However, Executive Order 13665, issued in 2014, restricts federal contractors and subcontractors from inquiring about salary history of applicants and employees during hiring and promotion. The order applies to contractors receiving federal funds exceeding specified thresholds and requires contractors to provide pay transparency and justify pay decisions based on job-related factors rather than prior salary.

The Equal Employment Opportunity Commission (EEOC) has stated that salary history inquiries can perpetuate existing wage discrimination and pay gaps, particularly affecting women and minorities, but the EEOC does not enforce a federal ban on the practice. Some states and municipalities have enacted their own salary history bans in response to concerns about perpetuating historical wage discrimination. Federal contractors must comply with the executive order; all other private employers in non-ban jurisdictions may ask about salary history without federal restriction.

The Fair Labor Standards Act (29 U.S.C. § 201 et seq.) addresses wage and hour matters but does not restrict salary history inquiries. The remedy for federal contractors that violate Executive Order 13665 can include contract suspension or debarment from future federal contracts.

Arkansas has not enacted a statewide salary history ban. Under Arkansas law, employers are not prohibited from inquiring about an applicant's or employee's salary history during recruitment, hiring, or promotion processes. Arkansas Code Annotated § 34-1-101 et seq. governs employment relations in the state but contains no provision restricting salary history questions.

This means Arkansas employers are generally weaker than employers in states with salary history bans (such as California, New York, Massachusetts, or Colorado). Arkansas job applicants do not have statutory protection against salary history inquiries, though they have no legal duty to disclose salary information if asked—they may choose not to answer, though the employer may decline to hire or promote them as a result.

However, some Arkansas municipalities may have enacted local pay transparency or salary history restrictions. For example, certain cities within Arkansas may have ordinances prohibiting salary history inquiries or requiring pay transparency. Job applicants should check their city or county websites for any applicable local ordinances. Additionally, individual employers in Arkansas may adopt voluntary pay transparency policies that restrict salary history inquiries as a best practice to reduce wage discrimination.

Arkansas employers must still comply with federal anti-discrimination laws under Title VII of the Civil Rights Act (42 U.S.C. § 2000e), the Age Discrimination in Employment Act (29 U.S.C. § 621), the Americans with Disabilities Act (42 U.S.C. § 12101), and other federal laws. If an employer's salary history inquiry is used as a pretext for discrimination on a protected basis (race, color, religion, sex, national origin, age, or disability), the employer could face federal liability. Federal contractors subject to Executive Order 13665 must also comply with the executive order's ban on salary history inquiries.

Arkansas employers are not subject to a statewide salary history ban, so there are no statutory exceptions to the ban itself. However, several important exceptions and limitations apply:

Federal Contractors: If an employer is a federal contractor or subcontractor receiving federal contracts over a specified threshold, the employer is subject to Executive Order 13665, which prohibits inquiries into salary history. This applies regardless of state law.

Local Ordinances: Certain Arkansas cities or counties may have enacted local salary history bans or pay transparency ordinances. These local restrictions override the state's default rule and prohibit salary history inquiries within that jurisdiction. Employers must comply with the most restrictive rule applicable to their location.

Discrimination Pretext: Even though Arkansas does not ban salary history inquiries, an employer's use of salary history as a basis for pay decisions can constitute unlawful wage discrimination if it perpetuates discrimination based on race, color, religion, sex, national origin, age, or disability. For example, if salary history is used to justify lower pay for women or minorities, federal anti-discrimination law may apply.

Voluntary Employer Policies: Some Arkansas employers may voluntarily adopt pay transparency or anti-discrimination policies that restrict salary history inquiries. These policies bind the employer internally.

Applicant Refusal: Job applicants have no legal obligation to disclose salary history. If an applicant refuses to disclose, the employer may choose not to hire or promote the applicant, but the refusal itself is not illegal.

Union Collective Bargaining: If an employer is subject to a collective bargaining agreement that restricts salary history inquiries or mandates pay transparency, the employer must comply with the collective bargaining agreement.

Arkansas has no statewide salary history ban, so there is no direct statutory violation of a ban. However, if you believe an employer's salary history inquiry was used as part of unlawful wage discrimination, or if you work in a municipality with a local salary history ban and your employer violated it, follow these steps:

**Step 1: Document the Salary History Inquiry** Keep records of all communications in which the employer asked about your salary history. Save emails, written questions from applications, notes from interviews, and the date and time of the inquiry. Document the name of the person who asked, their job title, and the exact question posed. If possible, note whether you disclosed your salary history and what the employer said in response. Keep records of any subsequent pay decisions or adverse employment actions that may have resulted from your salary history disclosure.

**Step 2: Review Your City or County Ordinances** Check whether your city or county has enacted a local salary history ban or pay transparency ordinance. Visit your city's official website or contact the city attorney's office to obtain a copy of any applicable local employment ordinances. If your jurisdiction has a salary history ban and your employer violated it, document this violation. If there is no local ban and no federal contractor status, the inquiry may be legal under Arkansas state law, but you may still have a discrimination claim if the salary history was used as a pretext for discrimination.

**Step 3: File an Eeoc Charge (for Federal Discrimination Claims)** If you believe the salary history inquiry was part of unlawful wage discrimination based on a protected class (race, color, religion, sex, national origin, age, or disability), you may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). You have 180 days from the discriminatory act to file (or 300 days in states with a deferral agreement, though Arkansas is not a deferral state). File online at www.eeoc.gov or contact the EEOC Memphis District Office at 901-544-0115. Provide details of the salary history inquiry, the discriminatory pay decision that resulted, and evidence that the employer treated similarly situated employees from different protected classes differently. The EEOC will investigate and attempt conciliation.

**Step 4: File a Local Administrative Complaint (if Applicable)** If your city or county has a local salary history ban, file a complaint with the appropriate local enforcement agency. This may be your city's human resources department, civil rights office, or equal employment opportunity office. Contact information should be available on your city's website. Provide documentation of the salary history inquiry, the date, and how it violated the local ordinance. Local agencies typically have 30 to 90 days to acknowledge your complaint and initiate an investigation.

**Step 5: Consult an Employment Attorney** Consult an employment law attorney licensed in Arkansas if: (1) the employer retaliated against you after you refused to disclose salary history or after filing a complaint; (2) you received adverse employment action (denial of hire, promotion, or termination) following the salary history inquiry; (3) the local or federal investigation does not resolve your complaint; or (4) you believe you are entitled to damages beyond administrative remedies. An employment attorney can review your case for violations of federal anti-discrimination law, state law, or local ordinances and represent you in further proceedings.