Can we ask applicants for their W-2s?

As an employer, before we hire an individual can we request they produce their W-2 from the previous year and their current employment contract for our examination?

Posted 07-08-2013

Ann Kiernan replies:

While you can ask, be aware of some potential pitfalls. The W2 has some information that employers cannot consider in making hiring decisions–whether an applicant is single or married, has kids (or other dependents, has received nontaxable sick pay, etc.).

Tax data, or lack thereof, can also reveal whether a person is unemployed. In several states (for instance, New Jersey, Oregon and the District of Columbia) it is unlawful for an employer to refuse to consider an applicant who is currently unemployed.

Also, if you base salary offers strictly on the applicant’s past wages, you may be perpetuating pay discrimination based on gender or race. The EEOC has warned employers about this in an enforcement guidance.

I would be more wary about asking for contracts, which might disclose proprietary information about the prior employer’s business that you have no right to see. Thanks for the interesting question.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.