No federal law stops a prospective employer from asking for your previous pay stubs, so the answer to whether an employer can ask for previous pay stubs depends almost entirely on where the job is located. More than 20 states and roughly two dozen cities now ban salary history questions during hiring, and in those places the request is effectively illegal. Everywhere else, the request is legal, but how the employer gathers and uses that information is still limited by federal anti-discrimination law and, when a third-party background check is involved, the Fair Credit Reporting Act.
Where the Request Is Banned
Since 2017, more than 20 states and around two dozen cities have passed laws that prohibit employers from asking about your pay history. The details differ, but the core prohibitions look similar across jurisdictions. A covered employer generally cannot:
- Ask about your prior wages, salary, benefits, or other compensation, whether in an interview or on a written application.
- Require pay stubs, W-2s, or other compensation records as a condition of being considered.
- Contact your former employers to find out what you were paid.
- Retaliate against you for refusing to provide the information.
Many of these laws also reach staffing agencies and recruiters working on the employer’s behalf. Coverage thresholds vary. Some laws apply to every employer; others start at 15 employees. Penalties range from a few hundred dollars per violation to $10,000 or more for repeat offenses, and many jurisdictions let applicants who prove a violation recover damages and attorney fees.
The location of the job usually controls, not the location of the company’s headquarters. If you’re applying for a role based in a city or state with a salary history ban, the employer must follow that jurisdiction’s rules even if it’s based elsewhere. Your state labor department’s website is the most reliable place to confirm what applies to you.
Where No Ban Applies
The Fair Labor Standards Act sets minimum wage, overtime, and recordkeeping rules, but it does not regulate what an employer can ask you during hiring.1U.S. Department of Labor. Handy Reference Guide to the Fair Labor Standards Act No other federal statute directly prohibits a private employer from asking a job applicant for pay stubs.2U.S. Department of Labor. Fair Labor Standards Act Advisor – Are Pay Stubs Required?
That doesn’t make the practice safe for employers. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin.3U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964 Because women and workers of color have historically been paid less, anchoring a new salary to old earnings can carry those gaps forward and create a disparate-impact problem. The EEOC’s Strategic Enforcement Plan for fiscal years 2024–2028 specifically identifies “reliance on past salary history or applicants’ salary expectations to set pay” as a practice the agency intends to target.4U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan Fiscal Years 2024-2028 In Rizo v. Yovino, the Ninth Circuit held that an employer cannot rely on a worker’s prior pay to justify paying her less than male colleagues doing the same work, ruling that salary history is not a legitimate “factor other than sex” under the Equal Pay Act.5U.S. Equal Employment Opportunity Commission. Fact Sheet: Notable EEOC Litigation Involving Pay Discrimination
So in a state without a ban, the employer can ask. Whether the employer can then use what it learns to set your pay is a narrower question, and courts and the EEOC have been closing the door on that use.
Volunteering Your Salary Is Not a Clean Loophole
Nearly every salary history ban distinguishes between an employer asking and a candidate volunteering. If you bring up your prior pay on your own, the employer doesn’t face a penalty for hearing it. What the employer can do with the information after that varies.
Some jurisdictions bar the employer from using volunteered pay data to set your compensation at all. Others let the employer consider it, but only after a formal offer has been extended and only when you shared the number to negotiate a higher salary than what was proposed. A few places let employers freely rely on information you offered without prompting.
The practical point: volunteering your salary in a jurisdiction with a ban can undo the protection the law was designed to give you. Unless you’re sure the local rules let the employer factor it in and a higher number helps your negotiation, keep the conversation on what the role should pay.
When a Background Check Is Involved
If the employer uses a third-party service to verify your employment or compensation history, the Fair Credit Reporting Act applies regardless of state. Screening reports that include salary information count as consumer reports, and the employer must follow a set sequence.
Before ordering the report, the employer has to give you a clear written disclosure, in a standalone document, stating that a consumer report may be obtained for employment purposes, and you must authorize it in writing.6Office of the Law Revision Counsel. 15 U.S. Code 1681b – Permissible Purposes of Consumer Reports If something in the report might cost you the offer, the employer has to send a pre-adverse action notice with a copy of the report and a written summary of your FCRA rights before making a final decision. Federal guidance suggests waiting at least five business days before acting.7Federal Trade Commission.