Maryland salary history ban: Lab. & Empl. 3-304.2 for recruiters

Maryland bars employers from seeking a job applicant's wage history, whether directly, through an employee or an agent, or from a current or former employer, and from relying on it to screen, consider or set pay. The rule is in the Labor and Employment Article, section 3-304.2, in force since October 1, 2020. Maryland's exception is narrow and one-directional: after an initial offer with compensation, a candidate can use their own wage history to argue for more, and the employer may rely on it for that purpose only. It can never be used to push an offer down.

The statute

Section 3-304.2(d)(1) says an employer may not:

• "retaliate against or refuse to interview, hire, or employ an applicant for employment or promote or transfer an employee because the applicant or employee: 1. did not provide wage history; 2. requested the wage range in accordance with this section; or 3. exercised any rights under this section"; and, except as provided below,
• "rely on the wage history of an applicant for employment in screening or considering the applicant for employment or in determining the wages for the applicant"; or
• "seek the wage history for an applicant for employment orally, in writing, or through an employee or an agent or from a current or former employer."

Subsection (e) adds that the section "may not be construed to prohibit an applicant for employment from sharing wage history with an employer voluntarily." The General Assembly's record for HB 123 (2020) shows the ban took effect October 1, 2020.

Who is covered

• Employers, with no size threshold in the section.
• Recruiters and agencies. The words "through an employee or an agent" cover a recruiter asking for a client. A staffing firm hiring its own workers is an employer in its own right.
• Applicants. The seeking and reliance rules protect applicants for employment. The retaliation rule also protects employees seeking a promotion or transfer.

The after-offer exception

Section 3-304.2(d)(2) is the only route to using wage history. After an employer "makes an initial offer of employment with an offer of compensation," it may:

• "rely on the wage history voluntarily provided by the applicant for employment to support a wage offer higher than the initial wage offered by the employer"; or
• "seek to confirm the wage history voluntarily provided by the applicant" for that same purpose.

Paragraph (3) adds a limit: the employer may rely on wage history this way "only if the higher wage does not create an unlawful pay differential based on protected characteristics under § 3-304." In other words, raising one candidate's offer to match their old pay is permitted only if it does not open a gap with colleagues that the equal pay law forbids.

What counts as voluntarily provided

The after-offer exception depends on history the applicant provided "voluntarily," and section 3-304.2 does not define the word. Read it alongside the ban on seeking: anything the candidate shares because a recruiter, hiring manager or form asked for it was sought, not volunteered. Phrases that turn a negotiation into a request include "what would you need to match your current package?" and "can you send a pay slip so we can see what we're competing with?" If you want the candidate to have the option, say so neutrally once the initial offer is out: "If there's anything you want the client to consider in reviewing the offer, tell me and I'll pass it on."

What it means for an agency desk

• Your question is the client's question. "Through an employee or an agent" closes the gap that agencies sometimes assume they sit in.
• Pre-offer figures stay with you, unused. A candidate may tell you their pay early, but the client cannot rely on it before an initial offer. Passing it on invites exactly that reliance.
• Post-offer, you are the messenger. If the candidate wants to use their pay to argue for more after the initial offer, carry the message accurately and let the client decide whether to confirm it.
• Never use it to argue down. The exception supports "a wage offer higher than the initial wage offered." It gives no room to lower an offer because a candidate earns less today.

How it works with Maryland's wage range law

Since October 1, 2024, subsections (a) and (b) have required employers to disclose, in each public or internal posting for a position physically performed at least partly in Maryland, a good-faith wage range and a general description of benefits and other compensation. If no posting was made available to an applicant, the employer must give that information before any discussion of compensation and on request. Our Maryland pay transparency guide covers the posting rule and the Commissioner's form. The two halves fit together: the range comes first, and the candidate's history only enters the conversation if they choose to use it to negotiate up.

Enforcement and penalties

Section 3-308 makes violating 3-304.2 a prohibited act and sets out the Commissioner of Labor and Industry's powers. If the Commissioner determines that an employer has violated 3-304.2, the Commissioner shall issue an order compelling compliance and may, in its discretion:

• for a first violation, issue a letter compelling compliance;
• for a second violation, assess a civil penalty of up to $300 for each employee or applicant for whom the employer is not in compliance; and
• for each subsequent violation within three years of a previous determination, assess up to $600 for each such employee or applicant.

The Commissioner considers the gravity of the violation, the size of the business, good faith and history of violations. The private right of action in section 3-307 refers to sections 3-304 and 3-304.1 and does not list 3-304.2, so enforcement of the history ban itself runs mainly through the Commissioner. A pay gap that started from reliance on wage history can still support an equal pay claim under 3-304.

The "what do you make now?" moment: a script

Instead of asking

"The posted range is $58,000 to $68,000, with health coverage and a retirement match (example figures). What are you looking for?"

When the candidate volunteers it before an offer

"Thanks. We can't use current pay at this stage, so I'll set it aside. If an offer comes and you feel it's low, you can raise your current pay then and the client can take it into account to go higher."

At the offer, when the candidate pushes back

"Understood. You're saying you earn $66,000 now and the offer is $62,000. I'll take that to the client. In Maryland they can use it to support a higher offer, and they may ask to confirm it." The offer call script covers the rest of that conversation.

When the client asks

"Maryland doesn't let you ask, including through me, and you can't use it to screen. If the candidate raises it after your initial offer to argue for more, you can consider it then."

A Maryland checklist

1. Remove wage history questions from applications, screens and intake forms, including those used by agencies.
2. Make sure postings for Maryland roles carry the wage range and benefits description.
3. Ask expectations only; see salary expectation questions.
4. Keep volunteered pre-offer figures out of notes and submittals.
5. After an initial offer, use volunteered history only to move an offer up, and check the higher number against internal equity first.

Compare Maryland's after-offer rule with similar ones in New York, Virginia and Rhode Island in salary history ban states.