Massachusetts salary history ban: c. 149 § 105A for recruiters

Massachusetts makes it unlawful for an employer to seek a candidate's pay history, from the candidate or from a current or former employer, or to screen on it, until an offer with compensation has been negotiated and made. The rule is part of the Massachusetts Equal Pay Act, General Laws chapter 149, section 105A(c)(2), in force since July 1, 2018. Two features set it apart for recruiters: the Attorney General has said in writing that the ban reaches recruiters acting for an employer, and it has warned against expectation questions designed to draw out the old number.

The statute

Section 105A(c)(2) makes it an unlawful practice for an employer to:

"seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or to require that a prospective employee's prior wage or salary history meet certain criteria"

Two provisos follow:

• if a prospective employee "has voluntarily disclosed such information," the prospective employer may confirm it or let the candidate confirm it; and
• a prospective employer "may seek or confirm" wage history "after an offer of employment with compensation has been negotiated and made."

Section 105A(b) adds that "an employee's previous wage or salary history shall not be a defense" to an unequal pay claim. The Attorney General's summary confirms the updated law took effect July 1, 2018.

Who is covered, and why it includes recruiters

The section applies to employers hiring for Massachusetts roles and protects "prospective employees." The statute itself does not mention agents, but the Attorney General's Equal Pay Act guidance is explicit: the prohibition "means that employers may not seek information on their own or through an agent (e.g., a recruiter or job placement service)." A recruiter asking on a client's behalf is the employer asking.

The same guidance says the ban does not apply to current employees applying for an internal transfer or promotion, because the employer already holds the information. For a multistate employer screening nationally, the guidance says it should comply if a candidate might end up working in Massachusetts.

What is banned and what is allowed

The guidance defines "voluntarily disclosed" by a reasonable-person test: the disclosure qualifies if a reasonable person in the candidate's position would not think, from the employer's words or actions, that the employer suggested or encouraged it.

The expectation question needs care here

Massachusetts is the state where wording matters most. The Attorney General says nothing in the law prohibits asking about compensation needs or expectations, but employers "should proceed with caution" and make sure the questions are not "framed or posed in a way that is intended to elicit" history. The guidance gives a concrete example of what to avoid: a follow-up such as "what is that expectation or need based on," which is reasonably likely to prompt the candidate to mention current pay.

So ask what the candidate wants and how firm it is, and stop there. If you need to understand a high number, ask about the role instead: "Which parts of this role would justify the top of the range for you?" More phrasing is in salary expectation questions.

How it works with the Massachusetts pay range law

Since October 29, 2025, a separate section, M.G.L. c. 149 § 105F, requires employers with 25 or more employees in Massachusetts, "or its agent," to disclose the pay range in a posting for a specific position, and to give the range to an employee offered a promotion or transfer and to an applicant who asks. Our Massachusetts pay transparency guide covers the details. Together, the two sections mean a candidate should hear the range from you early, and you should never hear their pay history from them before an offer.

Enforcement and penalties

• Who can sue. Section 105A(c) is enforced "in the same manner as subsection (b)," and an action for a violation of clause (2) "may be brought by or on behalf of 1 or more applicants for employment."
• What they can recover. The plaintiff "may also recover any damages incurred," on top of the subsection (b) remedies, which include unpaid wages, an equal amount as liquidated damages, and reasonable attorneys' fees and costs.
• The Attorney General may also bring an action under the section.
• Deadline. Actions under sections 105A to 105C must be brought within three years of the violation. No filing with the Massachusetts Commission Against Discrimination is required first.

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

Instead of asking

"The posted range is $80,000 to $95,000 base, with the benefits package on top (example figures). What are you hoping for in base, and is that a firm floor?" Then stop. Do not ask what the number is based on.

When the candidate volunteers it

"Thanks for telling me. I don't need your current pay for this, so I'll leave it out of my notes. Let's focus on the range: does $90,000 work for you?"

Massachusetts allows the employer to confirm a volunteered figure, but confirming it creates a record that it mattered. Record the expectation instead; see what not to write in interview notes.

When the client asks before the offer

"Massachusetts doesn't let us ask until there's an offer with compensation on the table, and the AG says that includes recruiters. Her expectation is $92,000, and she's firm on base."

After the offer

Once an offer with compensation has been negotiated and made, the law allows the employer to seek or confirm history. Ask whether the client actually needs it. If the offer is already made, the history rarely changes anything except the risk profile.

Where desks slip in Massachusetts

Most violations are not a recruiter bluntly asking for a pay slip. They come from habits carried over from other states or from older processes:

• The "based on" follow-up. A candidate names a high number and the recruiter asks what it is based on. The AG guidance names this exact question as one to avoid.
• Bonus and equity value. "What did your bonus pay out last year?" is a history question. Ask instead whether the candidate would forfeit anything by moving and when, without asking for the value before an offer.
• Sales roles. Asking about quota and attainment is allowed; asking what the candidate earned in commission is not.
• Pre-offer reference calls. A former manager who offers the candidate's salary unprompted is not the problem; asking for it is. Script reference calls without pay questions.
• Client intake forms. Some clients still send a candidate profile template with a "current package" field. Delete it for Massachusetts roles rather than leaving it blank, so nobody fills it in later.

A Massachusetts checklist

1. Remove pay history fields from forms for Massachusetts roles, and from national forms if a candidate might work there.
2. Script expectation questions without "based on" follow-ups.
3. Ask about sales targets and attainment, not sales earnings.
4. Keep reference checks off pay until after a negotiated offer, and question whether you need it even then; see the reference check template.
5. Record expectations and the date the range was shared.

Other states handle the post-offer window differently; compare them in salary history ban states.