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Great advice from The Lawyer Whisperer

July 31, 2017

If I am required to keep my compensation confidential (by state law or agreement with my employer), can I tell an employer in a job interview? If so, what’s the best way to say it without sounding snarky?

Julie Q. Brush

There is a wave of support in favor of laws that promote equal pay and restricting employers from inquiring about candidate compensation in the job interview process. In addition, a growing number of employers wish to keep their internal compensation metrics confidential. As a result, employees and employers alike in these scenarios must remain mum on the subject whenever and wherever the subject may arise.

But in the interview process, not all employers are in the know on the current dos and don’ts when it comes to the compensation inquiry. So what’s a candidate to do when legally prohibited from providing his/her coveted comp numbers?

If you are prohibited from disclosing your compensation as the result of a legally binding agreement between you and your employer, not only can you let the employer know…you must let the employer know – and must not disclose your current compensation package. That line is clear. The next issue is how to communicate this message without sounding snarky or obnoxious. As with everything, how you choose your words and tone will make a difference. Below is an example:

Employer: “What is your current compensation. I’d like to get a sense of whether you may be too expensive for this position.”

Candidate: “As part of my employment agreement with Company/Firm X, I’m prohibited from disclosing any aspect of my compensation. So unfortunately I cannot provide you with those numbers. But if you can confirm the compensation range for the position I can let you know whether it falls within my expectations.”

Formal job applications request compensation information as well. So when encountering such a request when completing one, simply state “Current employment agreement prohibits me from disclosing compensation information.”

What if you live in a state where the law prohibits employers from asking job applicants their compensation history (i.e. New York come November)? If you are in this type of situation, it’s illegal for an employer to even ask, but that doesn’t mean you won’t get the question. If you do, be polite:

Employer: “What is your current salary and compensation expectation?”

Candidate: “I’m not at liberty to disclose my current salary given the recently passed laws, but I’m happy to discuss my compensation expectations. I’ve been told by HR that the range for this position is $185k-$200k, 20% bonus and an RSU grant. Is this correct?” [Wait for employer response then respond accordingly] “Great, this fits within my expectations on the high end, so I would like to be at $200k on the base salary.”

Compensation discussions for job applicants can be dicey. When there are no restrictions on the inquiry or disclosure, finding the right narrative can be challenging for a legal professional. But for those situations where legal handcuffs are imposed, a gentle message with an unassuming tone informing an employer as such is the right path to pursue.

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