Asking a job applicant about his or her salary history — a question so standard that it comes preprinted on many off-the-shelf employment application forms — now is outlawed in Delaware, making the First State the first in the nation to criminalize that historic part of the hiring process.
Simply asking the job applicant what she or he has been earning may get you taken away in handcuffs.
OK, that’s a bit of hyperbole. But clearly exercising your First Amendment rights to commercial free speech now have been impeded and impaired by Dover lawmakers.
It will invite Delaware’s big government to put its foot on the neck of your business, complete with fines and penalties for noncompliance.
But, if you make a stand on principle, continue to ask the salary history question, and refuse big government’s efforts to compel you into submission by refusing to pay fines and assessments to the state’s treasury, I can’t help but think at some point they will come in to close you down and take you away.
All in the name of politically correct “social engineering” for “gender equity.”
House Bill 1, the new law at hand, was signed by Governor Carney on June 17 and it takes effect in December.
“The law is intended to address pay disparities between men and women,” said Margaret M. “Molly” DiBianca, an employment law attorney at Young Conaway Stargatt & Taylor LLP, one of Delaware’s leading corporate law firms and a leader in employment defense law.
“Because women earn 78 cents to every dollar earned by their male counterparts, the pay gap is perpetuated when women are paid based on their most recent salary instead of being paid based on a range set for the particular position. Thus, so goes the theory, the new law will level the playing field.
“Employers who fail to comply can be sued by the employee or prosecuted by the Department of Labor,” she said. “A first violation will result in a penalty of between $1,000 and $5,000. Any subsequent violation will result in a penalty of between $5,000 and $10,000.”
The firm, like its corporate law firm peers, has a big stake in keeping its clients out of trouble on employment law. It’s serious business for them, and I’ve worked personally with two of their senior attorneys, Barry Willoughby and William “Bill” Bowser. Their counsel is sound counsel to employers.
But the labor marketplace has for decades been called a “marketplace” because, well, it is. It’s where people go to buy and sell labor. It’s the market for labor.
In liberal orthodoxy, if, in fact, a “wage gap” exists — and fair debate continues about the numbers cited by Democrat lawmakers, and whether they even are close to being accurate for Delaware — then it’s someone’s fault. Maybe it’s my own as an employer. Maybe it’s the system.
But I’d raise this question.
As long as someone does not set out to discriminate based on the “forbiddens,” e.g., race, gender, age, sexual orientation, etc., does big government have any role in interfering in that marketplace in its pursuit of entitlements for those who have some self-interest in identifying themselves as “victimized classes”?
As a man, also one who has been an employer and hired dozens of employees, it’s clear I’ve achieved something of a second-class status as an exploiter, I guess. That I have a wife and a daughter, each of whom I’ve counseled on occasion, on salary and comp negotiations, does not nullify my inherent gender bias, which the ACLU and feminists tell me is evil at its heart because of my anatomy.
Joking aside, frankly, as a society, each of us has a stake in creating an environment of and value for “fair play” in the way we treat each other. And fairness in pay equity is reasonably a cornerstone of that. I’m committed to that, as I always have been.
But limiting my right to commercial free speech, to ask questions of prospective employees about salary history, has as much connection to pay equity as to whether I’m wearing a tie when I buckle myself into a car will keep me safer when I’m driving.
It’s politically correct. It’s symbolic. It’s nonsense. And it’s irrelevant.
Like the so-called $15-an-hour “living wage,” whether the work is worth $15 an hour, or it’s not, this is part of the leftist political Kool-Aid that shamefully passes today for public policy.
When I interviewed candidates for my firm of 10 people, my investment in interview time was a precious asset. It was not time I could afford to waste.
As a small professional services practice, I paid a good wage, and a fair one. But, of course, given the revenues and capital structures, I didn’t have the capability to compete compensation-wise with the MBNA Banks and the DuPonts of the world. I couldn’t.
In that process, I interviewed candidates who came from other small businesses, or were looking for some form of work-life balance, and I interviewed people coming from MBNA who were making two times, sometimes even three times, more than the other candidates.
That legislators who never have had to meet a payroll are repelling thousands of small businesses around the First State.
But even big companies don’t like the taste of this leftist Kool-Aid. In Philadelphia, where the city council passed similar legislation last year, its implementation remains on hold, stalled in part by opposition and threats from Comcast and the city’s chamber of commerce.
