Most employers filed Minnesota’s salary history ban with the rest of the 2023–2024 employment overhaul, somewhere near the paid leave notices and the posting rules, and treated it as a Department of Labor and Industry compliance item. Wrong shelf. I’ve watched that mistake cost people.
The Legislature didn’t put the pay-history ban in chapter 177 or chapter 181. It put it in the Minnesota Human Rights Act, as Minn. Stat. § 363A.08, subd. 8. Everything that flows from that placement is harsher than what employers expect from a hiring-practices rule. There’s no employee-count threshold. The claim is an “unfair discriminatory practice”, and the remedy section makes a civil penalty to the state mandatory on a finding of violation. Compensatory damages run up to three times actual damages, punitive damages are available, and the applicant gets a jury.
And here’s the narrower point for anybody actually running a hiring process. The exception everybody leans on, the candidate volunteered the number, is written as a one-way ratchet. It lets the employer use the number to pay more. It doesn’t let the employer use it to pay less.
Where the ban lives, and since when
Minn. Stat. § 363A.08, subd. 8, titled “Inquiries into pay history prohibited.” It came in through 2023 Minn. Laws ch. 52, art. 19, § 56, and that section carries its own effective-date clause:
This section is effective January 1, 2024. For employment covered by collective bargaining agreements, this section is not effective until the date of implementation of the applicable collective bargaining agreement that is after January 1, 2024.
So the general effective date is January 1, 2024, and employment covered by a collective bargaining agreement gets a later date, tied to when the applicable agreement is implemented after that.
The definition of “pay history” is broader than “salary.” Paragraph (a) defines it as “any prior or current wage, salary, earnings, benefits, or any other compensation about an applicant for employment.” Bonus structure, equity, employer-paid premiums, and PTO value are all pay history. So is current pay, not just prior pay.
Every employer is covered, all the way down to one employee
The MHRA defines “employer” as “a person who has one or more employees.” Minn. Stat. § 363A.03, subd. 16. There’s no 15-employee floor like some federal statutes have, and no 30-employee floor like Minnesota’s salary-range posting law has.
That last contrast deserves a minute, because people usually talk about the two rules together and they don’t cover the same ground:
| Pay-history ban | Salary-range posting | |
|---|---|---|
| Statute | § 363A.08, subd. 8 | § 181.173 |
| Coverage | Employer with one or more employees (§ 363A.03, subd. 16) | Employer that “employs 30 or more employees at one or more sites in Minnesota” (§ 181.173, subd. 1(b)) |
| What it regulates | What you may ask, consider, or require disclosure of | What must appear in a job posting |
| Enforcement home | MHRA, ch. 363A | Ch. 181 |
A four-person shop in Duluth has no posting obligation under § 181.173 and full exposure under § 363A.08, subd. 8. The posting rule and its “good faith estimate” salary-range mechanics get their own treatment in my guide to Minnesota’s pay transparency posting law. I won’t repeat them here.
The ban also runs against “an employer, employment agency, or labor organization.” A third-party recruiter is a direct respondent, not just a pipe for employer liability. “Employment agency” is defined in § 363A.03, subd. 17, as “a person or persons who, or an agency which regularly undertakes, with or without compensation, to procure employees or opportunities for employment.”
Three prohibited verbs, not one
Paragraph (b) provides:
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.
I read that sentence differently to clients depending on which side of the table they’re on. But the same two features drive both readings.
First, “consider” is a separate prohibited act from “inquire into.” Say an employer never asks but ends up holding the number anyway: a former colleague mentioned it, a background vendor returned it, it was on a résumé. That employer hasn’t violated the inquiry prohibition. It does have a live problem the moment that number shapes the offer.
Second, the prohibition is limited by purpose. It applies to inquiry, consideration, or required disclosure “for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant.” The statute doesn’t sweep in every mention of past compensation in every setting. It sweeps in the pay-setting use. In practice that qualifier will do less work than employers hope, because setting compensation is exactly what the hiring conversation is for.
The public-records exception, and the trap inside it
Paragraph (b) has one substantive exception, and it comes with an anti-workaround clause built in:
The general prohibition against inquiring into the pay history of an applicant does not apply if the job applicant’s pay history is a matter of public record under federal or state law, unless the employer, employment agency, or labor organization sought access to those public records with the intent of obtaining pay history of the applicant for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant.
This matters most in public-sector and quasi-public hiring, where salaries are often public data. The exception doesn’t say public pay data is fair game. It says the prohibition doesn’t apply to pay history that’s a matter of public record, unless the employer went looking for those records intending to get the applicant’s pay history so it could set the applicant’s pay. An HR analyst who pulls a public salary schedule to benchmark a position is in a very different spot from one who pulls a specific candidate’s public salary before making an offer. The second one is what the clause is aimed at.
Notice what the exception isn’t, too. It’s written as an exception to “[t]he general prohibition against inquiring into the pay history of an applicant.” It isn’t phrased as an exception to the separate prohibitions on considering and on requiring disclosure.
There’s no post-offer verification window
The statute has no post-offer verification exception. Subdivision 8 has five paragraphs. None of them opens a window once an offer goes out, and none of them limits the prohibition to the pre-offer stage. The trigger in paragraph (b) is purpose (“for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant”), and an offer that’s still open to compensation negotiation sits squarely inside that purpose.
When a client shows me a policy built on we only verify after the offer, my first question is where in the text they found that. So far the answer has been practice imported from other states. Not this statute.
The volunteered-number carve-out is a one-way ratchet
This is the provision most likely to get misread. Paragraph (c):
Nothing in this subdivision shall prevent an applicant for employment from voluntarily and without asking, encouraging, or prompting disclosing pay history for the purposes of negotiating wages, salary, benefits, or other compensation. If an applicant for employment voluntarily and without asking, encouraging, or prompting discloses pay history to a prospective employer, employment agency, or labor organization, nothing in this subdivision shall prohibit that employer, employment agency, or labor organization from considering or acting on that voluntarily disclosed salary history information to support a wage or salary higher than initially offered by the employer, employment agency, or labor organization.
Read the permission for what it says. It authorizes considering or acting on the volunteered number to support a wage or salary higher than initially offered. It doesn’t authorize using the number to anchor the offer down, to justify a lower band, or to decide the candidate will take less.
That has two practical consequences.
The qualifier “voluntarily and without asking, encouraging, or prompting” is demanding, and it shows up twice. The Legislature wrote the same three-verb phrase into both sentences of paragraph (c). “Encouraging” and “prompting” reach further than “asking.” A form field labeled current compensation, an applicant-tracking system that won’t move forward without a number, a recruiter’s so we’re in the right range, where are you today? None of those produce a volunteered disclosure.
Make the initial offer before the number exists. The permission is measured against “a wage or salary higher than initially offered by the employer, employment agency, or labor organization.” An employer that hasn’t made an offer yet has no baseline for the volunteered number to beat.
What the statute expressly preserves
Paragraph (e) protects two things employers should keep doing:
(1) providing information about the wages, benefits, compensation, or salary offered in relation to a position; or
(2) inquiring about or otherwise engaging in discussions with an applicant about the applicant’s expectations or requests with respect to wages, salary, benefits, or other compensation.
The statute draws its line between the applicant’s history and the applicant’s expectations. What are you looking for? is expressly protected by paragraph (e)(2). What are you making now? is paragraph (b). I tell employers to rewrite recruiter scripts around that distinction, not around a blanket instruction to avoid salary questions. Paragraph (e)(2) is the sentence that keeps the negotiation working.
Paragraph (d) protects something else: nothing in subdivision 8 “limits, prohibits, or prevents a person from bringing a charge, grievance, or any other cause of action alleging wage discrimination” on any protected-class basis otherwise provided in chapter 363A. A pay-history violation and a protected-class pay discrimination claim are separate theories, and you can plead them together.
The MHRA placement is what changes the exposure
Subdivision 8 doesn’t use the phrase “unfair employment practice”, and subdivisions 1 through 6 all do. That doesn’t matter, because the MHRA defines the operative term by location, not by label. “Unfair discriminatory practice” means “any act described in sections 363A.08 to 363A.19 and 363A.28, subdivision 10.” Minn. Stat. § 363A.03, subd. 48. Subdivision 8 is an act described in § 363A.08. The chapter’s full enforcement machinery comes with it.
Here’s that machinery.
Two routes, at the claimant’s election. Under § 363A.28, subd. 1, “[a]ny person aggrieved by a violation of this chapter may bring a civil action as provided in section 363A.33, subdivision 1, or may file a verified charge with the commissioner or the commissioner’s designated agent.” A charge with the Department of Human Rights isn’t a prerequisite to suit. The claimant may go straight to district court.
A one-year clock. Section 363A.28, subd. 3(a), requires that a claim of an unfair discriminatory practice “be brought as a civil action pursuant to section 363A.33, subdivision 1, filed in a charge with a local commission pursuant to section 363A.07, subdivision 3, or filed in a charge with the commissioner within one year after the occurrence of the practice.” The suspension rules, the 45-day-after-charge route into court under § 363A.33, subd. 1(3), and the 90-day windows after a commissioner determination are covered in my article on Minnesota Human Rights Act deadlines, and I won’t restate them. If you’re choosing between the state and federal tracks, see choosing your forum under the MHRA or federal law.
A mandatory penalty to the state. Section 363A.33, subd. 8(a), is written as a command: “The court shall order any respondent found to be in violation of any provision of sections 363A.08 to 363A.19 and 363A.28, subdivision 10, to pay a civil penalty to the state. This penalty is in addition to all damages recoverable at law and punitive damages to be paid to an aggrieved party.” The court sets the amount based on listed factors: “the seriousness and extent of the violation, the public harm occasioned by the violation, whether the violation was intentional, and the financial resources of the respondent.”
Treble compensatory damages, punitive damages, and a jury. The same subdivision provides that “[i]n all cases where the court finds that the respondent has engaged in an unfair discriminatory practice, the court shall order the respondent to pay an aggrieved party who has suffered discrimination compensatory damages, including mental anguish or suffering, in an amount up to three times the actual damages sustained,” and that the court “may also order the respondent to pay an aggrieved party punitive damages pursuant to section 549.20.” Section 549.20, subd. 1(a), allows punitive damages “only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.” Section 363A.33, subd. 6, gives both sides a right to a jury trial. Attorney fees to a prevailing party are discretionary under § 363A.33, subd. 7.
The administrative route runs on a parallel schedule, but not an identical one. An administrative law judge under § 363A.29, subd. 4(a), likewise “shall” impose a civil penalty and may award compensatory damages up to three times actual damages. Punitive damages there, though, are capped “in an amount not more than $25,000 pursuant to section 549.20.”
Where the leverage actually is
Here’s the practical problem with a stand-alone pay-history claim, and I put it to prospective clients straight. The civil penalty on a violation is mandatory, but it goes to the state, not to the applicant. The applicant’s own compensatory recovery under § 363A.33, subd. 8(a), is a multiple of “the actual damages sustained.” An applicant who got asked an improper question, answered it, and was hired at the number she wanted has a violation and a hard damages case.
Two things change that math.
The offer that came in low. Where the pay-history number demonstrably anchored the offer, the actual damages are the pay gap. And that gap compounds forward through every percentage-based raise built on the depressed starting salary. That’s a number you can compute, and then it’s subject to trebling.
The reprisal claim. This is the bigger exposure for employers, and in my experience it’s the one people miss most. Section 363A.15 makes it an unfair discriminatory practice to “intentionally engage in any reprisal against any person because that person . . . opposed a practice forbidden under this chapter.” The same section then spells it out: “It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in the activities listed in clause (1) or (2): refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1) or (2).”
An applicant who declines to answer a pay-history question, and says why, has opposed a practice forbidden under chapter 363A. If the process ends there, the claim isn’t about a question anymore. It’s a failure-to-hire case with full MHRA remedies, and the damages are the job.
Employers should catch the last clause too. Telling another employer that a candidate objected is itself a listed reprisal.
My advice, both directions
For employers. Audit the application form and the applicant-tracking system first. A required current compensation field is a per-applicant violation risk, and no amount of recruiter training will fix it. Rewrite scripts around paragraph (e)(2): ask about expectations, never about history. Tell recruiters a volunteered number may be used only to go up. If your background or reference vendor returns compensation data, turn that field off. And check whether any of your workforce is covered by a collective bargaining agreement that pushed the effective date past January 1, 2024.
For applicants. You don’t have to answer, and you can say so. Keep the artifacts: the application screenshot showing the required field, the recruiter email asking for your current base, the date you objected and what happened next. If an offer comes in materially below the posted range after you disclosed a number, the gap between the range and the offer is evidence. Two related articles are worth reading alongside this one. My discussion of false statements made to induce employment under § 181.64 covers the companion claim when the compensation representations that got you in the door were untrue. My guide to the Personnel Record Review Act is how you get the file once you’re inside. If your hiring process also involved a criminal background inquiry, Minnesota’s criminal history hiring rules under chapter 364 put their own timing limits on it.
Whatever you do, watch the one-year clock in § 363A.28, subd. 3(a). It’s shorter than most employment limitation periods, and it runs from the occurrence of the practice.
Madgett Law, LLC
Madgett Law, LLC represents Minnesota employees and job applicants in Human Rights Act matters, including pay-history and pay-transparency claims, failure-to-hire and reprisal claims, and wage and hour disputes under chapters 177 and 181. I handle both the Department of Human Rights charge track and direct district court actions, and I counsel small Minnesota employers on building hiring processes that don’t generate these claims in the first place. If you were asked for your salary history in a Minnesota hiring process, or you’re an employer trying to fix an application form before it turns into an exhibit, call 612-470-6529 or send us a message.
Sources: Minn. Stat. § 363A.08, subd. 8 (pay-history ban — para. (a) definition of “pay history”; para. (b) prohibition and public-records exception; para. (c) voluntary-disclosure carve-out limited to supporting a higher wage; para. (d) preservation of wage-discrimination claims; para. (e) preserved employer conduct); 2023 Minn. Laws ch. 52, art. 19, § 56 (enactment of subd. 8 and its effective-date clause — January 1, 2024, with collective-bargaining deferral); Minn. Stat. § 363A.03, subd. 16 (definition of “employer” — one or more employees), subd. 17 (definition of “employment agency”), subd. 48 (definition of “unfair discriminatory practice” as any act described in §§ 363A.08 to 363A.19 and § 363A.28, subd. 10); Minn. Stat. § 363A.15 (reprisals; refusal to hire as an enumerated reprisal); Minn. Stat. § 363A.28, subd. 1 (election between civil action and verified charge), subd. 3(a) (one-year period); Minn. Stat. § 363A.29, subd. 4(a) (administrative civil penalty; treble compensatory damages; $25,000 punitive cap); Minn. Stat. § 363A.33, subd. 1 (routes into district court, including the 45-day route at cl. (3)), subd. 6 (jury trial), subd. 7 (discretionary attorney fees), subd. 8(a) (mandatory civil penalty to the state; treble compensatory damages; punitive damages under § 549.20), subd. 9(1) (employment remedies); Minn. Stat. § 549.20, subd. 1(a) (punitive damages standard); Minn. Stat. § 181.173, subd. 1(b) (30-employee coverage threshold for salary-range postings), subd. 2 (posting requirement). Statutory text from the Office of the Revisor of Statutes, revisor.mn.gov, and session law text from the 2023 session law chapter page, August 22, 2026. This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no particular outcome is promised or implied.