Salary History Ban in Washington: What Employers Can Ask

Federal law does not prohibit employers from asking about salary history. The Equal Employment Opportunity Commission (EEOC) has taken the position that salary history inquiries can perpetuate historical pay discrimination, particularly against women and minorities, but no federal statute explicitly bans the practice. Some commentators argue that repeated use of salary history may contribute to pay discrimination violations under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) or the Equal Pay Act (29 U.S.C. § 206), but there is no federal law that categorically prohibits employers from asking the question itself.

The EEOC enforces federal pay discrimination laws through Title VII and the Equal Pay Act, which prohibit discrimination based on sex, race, color, religion, or national origin, but do not address salary history inquiries directly. Federal contractors and subcontractors may face restrictions under Executive Order 11246 depending on state and local laws, but the federal government does not mandate a universal salary history ban. This means that in states without their own salary history bans, employers remain free to ask applicants about past compensation. Washington state, however, has gone beyond federal law to create a categorical prohibition.

Washington Revised Code section 49.76.110 establishes one of the nation's strongest salary history bans. The statute prohibits any employer in Washington from (1) seeking salary history information from applicants, including through job applications, interviews, or conversations with references; (2) relying on an applicant's salary history in making hiring decisions; or (3) asking applicants to disclose salary expectations prior to making a written offer of employment.

Unlike federal law, Washington's ban is categorical and applies to all employers regardless of size. There is no employee threshold, so even small businesses with one employee must comply. The law covers all forms of employment inquiry—oral, written, or electronic—and extends to questions posed either directly to the applicant or indirectly through references or background check companies. An employer cannot legally ask, 'What did you make at your last job?' or 'What are your salary expectations?' before extending a written offer.

Washington's protection is substantially stronger than federal law because it creates an absolute prohibition rather than relying on discrimination theory. Federal law does not restrict salary history inquiries unless they are part of a pattern of discrimination. Washington instead presumes that salary history inquiries are problematic and bans them outright.

After a written offer of employment has been made, Washington employers may verify an applicant's salary history if the applicant consents and the information is used only to determine whether the offered compensation is reasonable. This narrow exception allows employers to confirm that they are offering market-rate compensation without using past pay to suppress future wages.

The law applies equally to all employers operating in Washington, including out-of-state employers hiring Washington residents. An employer cannot circumvent the law by asking questions in another state or through a third-party recruiter. Remedies available under Washington law include statutory penalties of up to $500 per violation per employee, plus actual damages, lost wages, benefits, and reasonable attorney fees. An employee may also recover costs of litigation.

Washington law provides a narrow exception after a written offer of employment has been made. Once an employer extends a written offer, it may request and verify salary history information only with the applicant's voluntary, written consent. Even then, the employer may use this information only to determine the reasonableness of the offered compensation, not to suppress wages or make comparative compensation decisions.

The law does not prohibit an employer from offering higher compensation based on market research, industry standards, or the applicant's qualifications, background, and desired salary expectations—only from basing compensation decisions on the applicant's actual past salary. If an applicant voluntarily and unprompted discloses salary history during an interview, the employer may listen but cannot rely on that information to make hiring or compensation decisions before an offer is made.

Public sector employers in Washington are covered by the same statute and cannot claim exemption based on their governmental status. Employers are not exempt if they are attempting to eliminate pay inequity, even if motivated by anti-discrimination concerns. The statute applies universally.

One significant employer defense is that the employer can ask about salary history or salary expectations if the applicant initiates the discussion or provides the information without being prompted. However, employers must be careful: they cannot ask 'follow-up' questions that effectively solicit the information. If an applicant says, 'I made $60,000 at my last job,' the employer may acknowledge this but cannot then ask probing questions about benefits, bonuses, or total compensation package.

Another limitation is that the law does not apply to inquiries made after hire, such as compensation reviews for existing employees or internal salary discussions. However, once a job posting is live or an applicant enters the hiring process, the prohibition takes effect immediately.

Step 1: Document what happened. Keep detailed notes of any salary history inquiry, including the date, time, person who asked the question, the exact wording of the question, and the context (phone call, email, in-person interview, application form). Save all written communications—emails, job applications with salary history fields, interview notes, or any correspondence from recruiters or HR staff. If a third-party recruiter asked about salary history, document their name, company, and the medium through which they contacted you. Take screenshots of online applications that ask for salary history. These records are essential evidence if you later file a complaint.

Step 2: Assess whether an internal complaint process exists and use it if available. Before filing an external complaint, check whether your employer has an internal grievance procedure, employee handbook, or HR complaint process. Contact your company's HR department or the person who conducted the illegal inquiry and explain that you believe Washington law was violated. Send this communication in writing (email) to create a record. State clearly: 'I was asked about my salary history on [date] by [person], which violates Washington Revised Code section 49.76.110.' Request a written response and document their reply. This step is not legally required but may prompt the employer to correct the behavior and can strengthen your case if you later pursue external enforcement. Keep copies of all internal correspondence.

Step 3: File a complaint with the Washington Department of Labor & Industries (L&I), Division of Labor Standards. You may file online at www.lni.wa.gov or submit a written complaint by mail to the Department of Labor & Industries, PO Box 44000, Olympia, WA 98504-4000. You can also call the Wage and Hour Program at (360) 902-9250. Provide your name, contact information, employer name and address, the date of the violation, the person who asked about salary history, the exact question or inquiry, and what you believe happened as a result. Include all documentation: emails, application forms, notes, and any communications with HR. File your complaint within three years of the violation (the statute of limitations for violations of Washington wage laws). The department will assign your complaint to an investigator.

Step 4: Expect the investigation process to take 30–90 days, though complex cases may take longer. The Department of Labor & Industries will contact the employer, request documents, and may conduct interviews. The investigator will review the job posting, application materials, interview notes, email records, and interview transcripts if available. They will ask the employer whether a salary history inquiry was made and request justification. The employer may claim the applicant volunteered the information, so the investigator will examine evidence of whether the employer solicited or relied on the information. Once the investigation concludes, L&I will issue a finding. If a violation is found, the department may assess penalties up to $500 per employee per violation, require the employer to cease the conduct, and order restitution for damages. If you are not satisfied with the outcome, you have the right to appeal.

Step 5: Consult an employment attorney if the employer does not comply with L&I findings, if you suffered concrete damages (such as a lower job offer or lost promotion opportunity), or if you believe you were subjected to retaliation for reporting the violation. An employment attorney can advise whether you have grounds for a civil lawsuit under Washington Revised Code section 49.76.120, which allows recovery of actual damages, treble damages, attorney fees, and litigation costs. An attorney can also determine whether the violation compounds other discrimination claims (such as gender or race discrimination) that may increase damages. Many Washington employment lawyers offer free initial consultations and work on contingency (no upfront fees).