A Federal Employee Group is Again Urging OPM to Ban All Use of Salary History in the Federal Hiring Process

An association of employees at the Justice Department on Tuesday renewed calls to the Office of Personnel Management to ban federal agencies’ use of salary histories when setting pay for new federal workers during the hiring process, citing their role in perpetuating gender and ethnic pay disparities.

Earlier this year, the Biden administration announced that OPM had begun work crafting new regulations to “address” the use of job applicants’ salary histories when setting the pay of new hires at federal agencies. Although there appeared to be consensus within the administration that the use of salary history to set a new employee’s pay perpetuates historic gender and race-based pay disparities, officials stopped short of saying they would ban the practice altogether.

“One factor that contributes to the gender pay gap is the common practice requiring applicants to share their salary history,” said Vice President Kamala Harris last March. “[For] many women, this practice can mean inequitable pay from a previous job will follow them to their current job, and so on and so on. So our administration is committed to eliminating discriminatory pay practices that inhibit the economy, efficiency and effectiveness of the federal government, and that’s why today, our Office of Personnel Management will begin work to address the use of salary history in the hiring and pay-setting process for federal employees.”

Officials have suggested that agencies will no longer be allowed to solicit the salary history of job applicants under the new regulations, but have been less clear about whether applicants will be able to voluntarily provide agencies with their salary history. Employee organizations like the Department of Justice Gender Equality Network, a group of around 1,100 Justice Department employees, have argued such a provision would amount to a loophole that would allow pay disparities to persist.

In a letter to OPM Director Kiran Ahuja Tuesday, DOJ GEN President Stacey Young said an “air-tight” ban on the use of salary histories in the federal hiring process is needed to ensure the government fulfills its promise to be a “model employer.”

“Despite a narrowing of the gender pay gap in recent years, as of September 2021, women employed by the executive branch still make 5.9% less than their male colleagues, and that disparity remains far more acute for Black, Latina and Native American women,” Young wrote. “Robust, top-down efforts are needed to eliminate pay inequities entirely . . . But even if agencies stop soliciting salary history, pay inequities will continue to be carried from job to job if agencies are allowed to rely on salary history information that applicants choose to provide, or that agencies otherwise learn about."

The potential for abuse of a loophole where applicants can continue to volunteer their salary history is particularly acute at agencies like the Justice Department, the organization wrote, where the gender pay gap in certain occupations is much higher than the governmentwide average.

“Without a comprehensive salary history ban, male attorneys, who earn on average 22.6% more than female attorneys, could still leverage their past salary to negotiate higher starting salaries at DOJ than equally qualified female counterparts,” the letter states. “Similarly, when applying for federal sector positions in the STEM field, male applicants from Silicon Valley—where men have been found to earn as much as 61% more than similarly situated women—could volunteer their salaries and receive higher starting salaries than female applicants with the same or better credentials.”

Young argued that ultimately, policies that improve diversity and fairness are necessary for the government to compete for talent with the private sector.

“A comprehensive ban on both the solicitation and consideration of applicants’ salary history will not only benefit employees; it will benefit the federal government as well,” she wrote. “Taking meaningful steps to shrink salary gaps will improve agencies’ ability to recruit and retain top talent, advance compliance with the administration’s [diversity, equity, inclusion and accessibility] mandates, and reduce costly legal challenges to salary disparities under the Equal Pay Act and other civil rights laws.”