Is it OK to request W2’s from job applicants to verify their income before extending a job offer?
According to employment attorneys, the practice of employers asking job applicants for copies of their W2 forms to verify employment and compensation comes with substantial legal risks.
Technically, requesting a W2 from a job applicant is not prohibited, but it can raise issues that HR experts suggest should be considered before taking this step. The tax forms disclose information that could be related to the applicant’s health – for example, sick pay could suggest that the applicant has a health problem; previous salary, if used to determine future salary could form the basis for a claim of discrimination; periods of unemployment would be revealed which, in certain states, is a protected trait when it comes to hiring staff.
W2 forms also include a section that details dependent care benefits an employee has received, which can give a hint as to parental status. According to the Equal Employment Opportunity Commission, questions about marital status and the number and ages of children are often asked, which can be construed as evidence of intent to discriminate against married women or women with children – violating the Civil Rights law of 1964. To circumvent this, companies may try to obtain the information by requesting the tax form, W2 which - on the face of it - would not be illegal but could be a cover for illegal activity.
In addition, requesting W2’s could have a negative effect on the applicant, who may consider this action to be inappropriate and intrusive and not wish to continue with the job application.
Although a federal bill - sponsored by Republican Eleanor Holmes Norton - aimed at preventing employers from asking job applicants to provide a salary history has stalled, many employers still avoid asking questions about an applicant’s salary history.
An increasing number of states and cities are also passing their own versions - New York City and New Orleans have already instigated salary history laws which prohibit city agencies and public and private companies from requesting pay history.
Massachusetts has passed a law that bans employers from asking for salary history until the offer of employment has been made. This will become enforceable in July 2018 and in Rhode Island, it is unlawful for an employer to require an applicant to provide a federal or state income tax return or related tax documents as a condition of being considered for employment (RI Gen Laws Sec. 28-6.9-1).
