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Is it Legal for An Interviewer to Ask an Interviewee for their Salary History?

Is it Legal for An Interviewer to Ask an Interviewee for their Salary History?

Unsure whether an interviewer can ask you such a question, or whether you can ask it? Read on.

9th November 2018

Unsure about whether you can ask your interviewee about their Salary History? Or are you unsure whether a potential employer can ask you? Here we’ll provide some answers.

First and foremost, this question places itself in an extremely grey area of law as obtaining specific knowledge is in the interests of both an employer and employee.

However, if the use of such information was for discriminatory purposes (such as forming a prejudice based on your salary history or denying you opportunity), it would be illegal. Employers need to be careful that they do not ask a candidate for their salary for this reason.

However, most interviewers ask for an interviewee’s Salary History in order to evaluate the person’s ‘market price tag’. It is also used to negotiate a salary range depending on your skill level. If you are a soon-to-be interviewee, it is recommended to check whether you are under a contractual agreement to not disclose your past earnings to the interviewer.

What is discrimination in interviews?

The definition of discrimination is the unjust and prejudicial treatment of different categories of people. The type of questions an interviewer can’t ask you involves questions referring to your age, gender, ethnicity or sexuality. These attributes are not relevant to an employee’s ability to perform a job. This is supported by both the Equal Opportunity Act 2010 and the Anti-Discrimination Act 2004.

In regards to an interviewee’s ability to perform a job, the legislation states that an interviewer can request information that is reasonably required for non-discriminatory purposes. For a claim to be sufficient, an interviewee would need to either:

    • Identify the interviewer’s unlawful question or;
    • Find a specific piece of evidence that reasonably infers discrimination on behalf of the interviewer either during the interview or in post-interview discussion/ decision making
    • If you’re unsure whether it’s reasonable for you

How does it apply to questions regarding Salary History?

The first question that must be discussed concerns What sort of information does the interviewer receive when I give them my Salary History?

Salary History includes the name of each company, job title, and the salary and benefits package the candidate has received in the past. It doesn’t convey the interviewee’s worth in the new role as every job assignment is different. It doesn’t tell you how good they are at their job, nor their passion, enthusiasm or teamwork, and it doesn’t tell the interviewer of their talent, as there are overpaid and underpaid people everywhere.

Looking at the above legislation, it’s reasonably clear that a Salary history is an attribute that’s not entirely relevant to an employee’s ability to perform a job.

Does this mean it’s illegal as a discriminatory question?

Firstly, Anti-Discrimination legislation does not ban such a question regarding specific Salary History information: it doesn’t ban any questions that may infer information regarding socio-economic status — rather, it looks at obvious attributes of a person that are not relevant to job performance, and even though Salary History is arguably one of them, it does not state it.

Secondly, Equal Opportunity legislation infers that asking for past-Salary history can be used in a non-discriminatory fashion in order to establish a fair market wage for the interviewees. This market wage can even be negotiated on the table. This would only amount to discriminatory conduct — as stated in the Fair Work Act 2009 — if the interviewee found a specific piece of evidence/ or had a reasonable belief that the interviewer was being unreasonable and unethical with their decision making.

In these two cases, the best interests of the interviewer are weighed up in the best interests of the business. There may be some inherent bias in the decision making process in which the business may want to hire quality employees for less. However, all this is speculative and ambiguous.

This means that an interviewer can ask you about your Salary History — but, if you want, you can politely decline to relinquish such information.

What do I do if I’m asked about my Salary History?

If you politely decline the interviewer’s question, it may give the interviewer incentive to explain to you why they need such information – thus making the question more ethical and less discriminatory. If you want to be flexible, you could put forward a salary range: you could state “I am earning in the mid-fifties” or perhaps give them a range of two numbers to work with.

It is unethical and unwise to lie about your Salary history if asked. You will get into enormous amounts of trouble if your interviewee happens to find the truth. Overall, you need to play your cards right. Such information may give the employer a leg up in the salary negotiation process. In this, you can’t ask the employer about the businesses recent profits, monetary value etc.

Know your rights

Knowing your rights as an interviewee can in some situations, allow you to successfully get through your interview with a positive outlook on your future career. It also means bettering the recruitment process in the workforce by identifying unethical recruitment questions.

Unsure where to start? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Tristan Salanitro

Tristan is currently working as an intern at Lawpath. He is studying a Bachelor of Science in Information Technology and a Bachelor of Laws at UTS. Tristan is passionate about the innovations that legal technology can bring to both the current and future legal framework.