Virginia Legislation Update: Salary History Inquiry Ban and Salary Transparency Requirement
On April 22, 2026, Virginia Governor Abigail Spanberger signed HB636 into law, which will, beginning July 1, 2026, (1) prohibit employers from inquiring about an applicant’s salary history; and (2) require employers to disclose in all job postings a salary range for the open position. As indicated in a previous blog post, this law follows in the footsteps of similar laws that went into effect in 2024 in both DC and Maryland.
1. The Salary History Inquiry Ban
This law will generally prohibit employers from seeking the wage or salary history of a prospective employee. This would include, for example, asking an applicant to share their wage or salary history, or asking an applicant’s current or former employers to share the applicant’s wage or salary history. As an extension, it would also likely prohibit an employer from searching for an applicant’s wage or salary history in publicly available databases (such those that may be available for former federal or state government employees).
If an employer inadvertently learns of an applicant’s wage or salary history, the employer may not rely on that information in making either its hiring decision or in determining the applicant’s wage or salary. One exception is if the applicant voluntarily provides their wage or salary history without the employer’s prompting; if this happens, then the employer may rely on that information, but only to make a higher compensation offer than originally anticipated (assuming that such a higher offer would not violate the Virginia and federal laws requiring that employees be paid equally, regardless of their sex). Also, if an applicant voluntarily provides their wage or salary history without the employer’s prompting, then the employer may seek to confirm that information, such as by contacting the applicant’s current or former employers.
2. Salary Transparency in Job Postings
The law will further require that employers include the wage or salary, or a wage range or salary range set in good faith, in all external and internal job postings or other employment opportunities. The law provides virtually no guidance on what it means to set a wage range or salary range in “good faith,” except that “the breadth of such wage or salary range” shall be considered.
To address this ambiguity, we would recommend that employers follow the guidance of the New York Department of Labor regarding that state’s pay transparency law:
A “good faith” pay range should be the range of pay you legitimately believe you are willing to pay at the time of the job opportunity posting. You should consider what is the legitimate range of pay that will be required to attract qualified candidates at the time you are posting the advertisement. Factors to take into account include the job market, current employee compensation levels, hiring budget, and the experience and education levels you are willing to accept for the position.
Additionally, employers may not retaliate against an applicant (such as by refusing to interview or hire them) because the applicant asks about an open position’s wage or salary, or wage range or salary range. For example, in the case where the employer failed to include such information in the job posting, or there was no written job posting for the position.
3. Potential Liability for Violating the Law and Additional Guidance
The penalties for violating the provisions of this Virginia law are significant. First, the state can bring a civil action against employers and collect a civil penalty of $1,000 for a first violation and $5,000 for subsequent violations. In such state actions, a court may also award “any other legal and equitable relief it deems appropriate.”
Second, aggrieved applicants can bring their own civil actions against employers within one year of any violation of the law. Employers will be liable to aggrieved applicants “for actual damages and any other legal and equitable relief as the court deems appropriate.” However, before an aggrieved applicant can bring a civil action for an employer’s failure to include a wage or salary range in a job posting, the aggrieved applicant must provide the employer with notice of the failure and 15 business days to correct it. The “actual damages” in a failure to hire case can include both back pay and front pay.
Although the law does not clarify to what geographic extent it applies, we recommend that employers assume that the law applies if the applicant who is hired might work (or would report to someone who does work), even in part, within the Commonwealth of Virginia. It is also unclear whether the law will apply to job postings that are published before July 1, 2026, but maintained after that date. We recommend assuming that the law will apply to those postings.
Other guidance provided by the New York Department of Labor that we would recommend considering includes the following:
[T]he law applies to advertisements whether they are posted by the employer directly or by a third-party on behalf of the employer, such as a recruiter or job listing website. Employers are responsible for complying with the law for any advertisement they have agreed to post, regardless of whether they send the information out directly, or decide to use a third-party recruitment tool, such as a recruiting service, job listing website, or a job board with postings, like those found on a college campus.
The range of pay must be the minimum and maximum annual salary, piece rate or hourly rate that the employer believes in good faith to be accurate when the ad is posted. If there is no minimum or maximum range, for instance, the salary is just a fixed rate of $50,000 per year or $20 an hour, that is acceptable. It is not acceptable to include an open-ended salary range such as “$17 an hour and up.”
Having a range of pay so broad as to prevent a potential applicant from understanding the legitimate pay range an employer is willing to pay is not in good faith. For a pay range with significant breadth, an employer must provide further information explaining why the range is so broad.
Key Take Aways for Employers:
For employers in the DC, Maryland, and Virginia area who post a job that may be performed (even in part) anywhere in these states, we would recommend abiding by the laws of each of these jurisdictions in each job posting. As indicated in our previous blog post, this would include—in addition to the wage or salary range—a general description of benefits and any other compensation offered for a position.
Employers who are willing to consider applicants of significantly different experience levels for a position, and who are willing to offer significantly different compensation levels for a position depending on who is hired, should clarify in any job posting the level of experience that corresponds to the level of compensation.
If what an employer is willing to pay is dependent upon where the employee will work, then the employer should consider explaining what the pay range will be for each geographic area in which the employee might work.
Employers should immediately start abiding by the requirement for salary transparency in job postings that may be posted beyond the end of June 2026. Additionally, before the end of June 2026, employers should revise job postings to ensure compliance with the new law.
Employers should train anyone who might interview applicants about the restrictions on wage or salary history inquiries and the prohibition on independent research to discover an applicant’s wage or salary history.
Have questions? Contact us.
