Minnesota salary history ban: Minn. Stat. 363A.08 subd. 8 for recruiters

Minnesota has barred employers, employment agencies and labor organizations from asking about an applicant's pay history since January 1, 2024. The rule is subdivision 8 of Minnesota Statutes section 363A.08, part of the Minnesota Human Rights Act, which means a violation is an unfair employment practice handled like a discrimination claim. Two features stand out: the statute's test for volunteered pay is unusually strict ("without asking, encouraging, or prompting"), and the ban covers getting pay history "from any source," including public records.

The statute

Section 363A.08, subdivision 8(b) reads:

"An employer, employment agency, or labor organization shall not inquire into, consider, or require disclosure from any source the pay history of an applicant for employment for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant."

"Pay history" means "any prior or current wage, salary, earnings, benefits, or any other compensation." The subdivision was added by 2023 Minnesota Session Laws chapter 52, article 19, section 56, effective January 1, 2024. For employment covered by a collective bargaining agreement, it took effect only when a new agreement was implemented.

Who is covered

• Employers with one employee or more. Under section 363A.03, subdivision 16, an employer is "a person who has one or more employees."
• Employment agencies. The subdivision names them directly, and the act defines an employment agency as a person or agency that "regularly undertakes, with or without compensation, to procure employees or opportunities for employment." Agency recruiters are covered in their own right.
• Labor organizations, for hiring halls and referrals.

The "for the purpose of" phrase

The ban covers inquiring into pay history "for the purpose of determining" the applicant's compensation. Some readers take that as a gap: ask, but for some other reason. It is a weak one. On a hiring call, almost any pay history question will look aimed at the offer, and the statute gives no list of other acceptable purposes. The statute also addresses public records directly: the general ban does not apply if pay history is a public record, "unless" the employer "sought access to those public records with the intent of obtaining pay history" to determine compensation. Looking up a former public employee's salary to anchor an offer is covered.

What is banned and what is allowed

Volunteered pay: "without asking, encouraging, or prompting"

Subdivision 8(c) protects an applicant who discloses pay history "voluntarily and without asking, encouraging, or prompting" to negotiate. When that happens, the employer, agency or union may consider it "to support a wage or salary higher than initially offered."

The word "encouraging" is broader than the "without prompting" test in Hawaii or Virginia. A recruiter who says "if you're earning more than that, let me know" or "is the range in line with what you have now?" is encouraging a disclosure, and anything said in reply falls outside the exception. Questions should be about the future only: what the candidate wants, what they need to move, when they could start. For how to handle candidates who push on the range, see how recruiters answer candidate salary questions.

How it fits with Minnesota's pay range law

Since January 1, 2025, Minn. Stat. § 181.173 has required employers with 30 or more employees at one or more Minnesota sites to put a starting salary range and a general description of benefits in each posting. "Posting" includes recruitment done "indirectly through a third party," so agency ads are covered. The two rules point the same way: the employer's range opens the conversation and the candidate's history stays out of it. Employers under 30 have no posting duty but are still bound by the history ban. Details are in our Minnesota pay transparency guide.

Enforcement and remedies

• Charge or lawsuit. Under section 363A.28, an aggrieved person may file a charge with the Commissioner of Human Rights or bring a civil action. The claim must be brought within one year after the practice occurred.
• Damages. Under section 363A.29, subdivision 4, a respondent found to have committed an unfair discriminatory practice must pay compensatory damages of up to three times actual damages, and may be ordered to pay damages for mental anguish or suffering, reasonable attorney's fees, and punitive damages of up to $25,000.
• Civil penalty. The same subdivision requires a civil penalty to the state for violations of sections 363A.08 to 363A.19, set by the seriousness of the violation and the respondent's resources.

These remedies are larger than the flat fines in many states, which is a good reason for agencies to treat the Minnesota rule as seriously as a discrimination rule.

"From any source": references, checks and old records

The words "require disclosure from any source" close the indirect routes to pay history as well as the direct question. For an agency desk, that means:

• Reference calls. No questions about what the candidate was paid, including "was she well-compensated?" The candidate reference call script leaves pay out entirely.
• Background checks. Order employment verification without salary verification for Minnesota roles.
• Your own database. If the candidate was placed or interviewed years ago and your ATS still holds a salary from that search, using it to set or pitch the offer is considering pay history. Hide those fields for Minnesota searches.
• Job boards and profiles. Some profiles display current pay. Do not copy it into the submittal.

Agency intake for Minnesota roles

• Get the starting range and benefits description in writing before advertising; if the client has 30 or more Minnesota employees, every posting you run needs them.
• Agree that neither the client nor your team will ask candidates, references or former employers about pay.
• Agree that if a candidate raises current pay unprompted after an offer, you pass it on only as a request for a higher number.
• Use a candidate submittal template without a current-pay field.

A Minnesota script

Opening the pay topic

"The starting range for this role is $70,000 to $82,000, plus health coverage and a 401(k) (example figures). What are you hoping for?"

When the candidate asks if you need their pay history

"No. Minnesota doesn't allow us to ask, and we wouldn't use it."

After the offer, when the candidate raises current pay unprompted

"Thanks. I'll pass that on as a request for a higher number." Pass on the request, not a figure for the file.

When the client asks

"Minnesota's Human Rights Act bars us as the agency from asking, from any source. Her expectation is $80,000."

Minnesota checklist

1. Remove pay history fields from forms, screens and intake templates for Minnesota roles.
2. Tell sourcers not to search public salary data for candidates.
3. Keep pay off reference calls and background check orders.
4. Put the starting range and benefits in postings if the employer has 30 or more Minnesota employees.
5. Ask only forward-looking questions using salary expectation questions, and keep any volunteered figure out of notes; see what not to write in interview notes.

For the other states, see salary history ban states.