The Office of Federal Contract Compliance Programs (OFCCP) has published a set of Frequently Asked Questions that reiterate longstanding principles on the role of pay history in employment decisions.
For example, one FAQ discusses whether an employer can rely on an applicant’s compensation history when making hiring or compensation decisions. It explained that some states and localities have passed laws that prohibit employers from asking about and/or relying on a job applicant's prior compensation when making hiring and pay decisions. It further noted that the U.S. Office of Personnel Management (OPM) recently prohibited managers from using compensation history when setting pay for federal employees. The FAQ stated that federal law does not forbid a private employer to rely on a worker’s pay history when determining the worker’s pay rate, but the practice could contribute to unlawful discrimination.
OFCCP issued the FAQs on January 29, 2024, the same day that the White House announced that the agency would issue guidance “to help federal contractors and current and prospective contractor employees understand when reliance on an individual’s compensation history for hiring or pay decisions may result in unlawful discrimination.”