In the current economy, the hiring process and salary negotiations are already slanted toward employers and against employees. This makes a new trend among employers to require potential hires to provide previous W-2 forms – sometimes years’ worth of them – particularly worrying. But is it illegal?
(Photo Credit: pakorn/freedigitalphotos.net)
Is Requiring These Forms Legal?
The first question many potential employees facing this request is often, “Do I have to give it to them?” As Hannah Morgan of CareerSherpa points out, you certainly do not have to, but refusing to provide the form may likely negatively impact your chances of getting the job.
The followup question candidates often have is, “Is requiring me to provide these forms legal?” The best answer we can give you to this one is, “Yes, but maybe not.” Simply asking for the forms does not in and of itself violate any laws. However, the reason for requesting these forms may, in some circumstances, run afoul of the law.
W-2s Provide Salary Information, But They Also Provide Much More
PayScale’s Director of Professional Services, Mykkah Herner, recently weighed in on this topic. He says that a likely reason that employers are asking for this information is to confirm your current pay rate.
“Many employers will ask you to say what you’re currently making or to provide a salary history,” Herner says. “This isn’t new, and has long been a part of recruiting practices. It’s interesting to see this trend towards requesting W-2s. To me, it suggests a lack of trust on the part of the potential employer, which is a major red flag.”
Additionally, he suggests that you consider the things besides salary information that appear on your W-2, like dependent care benefits.
He says, “We know organizations can’t discriminate on things like marital status, so it seems suspect to me to inadvertently request this information prior to hire.” This is where the potential for illegality comes into play.
Employers Could Use W-2 Data to Engage in Unlawful Discrimination
Some tax forms, such as the W-4, include information about marital status and also suggest the number of a children a person may have due to the number of tax exemptions he or she claims. W-2 forms also include a section that details dependent care benefits an employee has received, which can tip employers off as to parental status.
According to the Equal Employment Opportunity Commission, questions about marital status and number and ages of children are frequently used to discriminate against women in violation of Title VII. Asking a potential job candidate questions about marital or parental status may in and of itself be considered evidence of an intent to discriminate against married women or women with children.
Companies who aim to discriminate but know that they cannot come right out and ask job candidates these questions may now try to backdoor their way into the information by requesting these tax forms. This discrimination would be illegal if the employer is covered by the Civil Rights Act. It may also violate state law. So while asking for these forms is not on its face
illegal, it may be a cover for illegal activity in some cases.
This post was changed to reflect the fact that marital status appears on the W-4, not the W-2 form.
Tell Us What You Think
Do you know someone who has been asked by a potential employer to provide a copy of his or her W-2? We want to hear from you! Leave a comment or join the discussion on Twitter.
I have been asked for the past 5 years of W-2s plus the last pay stub from my previous employer by a back ground check company on behalf of the employer. I feel it is invasive & I feel distrusted. I have turned down the position. It is not the kind of company I want to work for!
My wife was employed by a large healthcare corporation that required a 4506 form. By requiring this my tax returns were disclosed as well. A few months later the IRS notified us that we were the victims of ID fraud. This had never happened to us before the tax returns were disclosed. I am suspicious
I have worked in the IT industry for 24 years and have only been asked for my W2 and Tax information one time. That job, I didn’t take because I didn’t want to work for a company that didn’t trust me and I didn’t feel comfortable giving them such sensitive information. This job didn’t require a security clearance so it seemed odd they would require such a personal item. Also, if they wanted to negotiate salary, tell me what you… Read more »
I have never had an employer request a W-2 form. I would find it quite offensive and questionable to make such a request. If you are trying to negotiate and sell yourself into a better position than you might have been before (especially after getting a degree) the potential employer may attempt to bully or lowball you to take less pay than you may have normally receive otherwise. It limits the potential to rise up into a better pay bracket.
I’m an employment lawyer and don’t see any more illegality in than looking at a Facebook page. You can tell if people are single, married, disabled, straight, gay, are a cancer survivor, you name it. Same argument about asking for mailing address on an job app. My question is what are the employer legitimately looking for? The truth about past salary? Why? So you can pay them less? Is past salary going to determine what you will pay them? I… Read more »
Aerotek Staffing in Dallas Texas is currently demanding all potential hires for a customer service position in Dallas provide this information as well. For the last three employers. It is a bit too intrusive and I wouldn’t give that info out. Your W2 has a lot of extraneous information that the potential employer has no right to ask or even know.
I was also asked to provide Paystubs & W2s. I had to research it because this is the first time it has happened to me.
My husband has been asked by two employers who not only wanted the most recent w2 but from the last ten years from several different jobs. This doesn’t sound legal to me. Someone needs to speak up about this
I work for a major gym corp. I now work the graveyard shift. We recently have a new system and way of clocking in on the computers . It also has benefits, pay,health links etc.. I noticed that they have ALL my tax returns from ALL my previous employers. I went back as far as 2013. Is this legal? I NEVER gave them access to those nor did they ever ask me before hire. Whats going on? Please let me… Read more »
Dawn, of course they do! I just doubled check.
I was already offered the job and signed my offer letter last week. I’m going from a temporary position to permanent. I was asked for this information by the background check company. Doesn’t make sense to me.
I was recently asked for two W-2 forms from a single previous employer citing that they were required for employment verification, however they requested forms for years that were not consecutive (eg. 2013 and 2015. They did not request 2014)…why? I questioned if there was another way to verify employment and have yet to receive a response. Nevertheless I provided the requesting company with the alternative contact information for employment verification. I am waiting to see if that will suffice.
Apparently it is a lot more common for employers to have The upper hand by requesting w2 from prospective employees. I’m going through a recruiting agency and I have to provide this for a large medical company. If im employed by the agency not at the medical company, but in order for me to get that job I have to provide my w2’s. I was unemployed for a duration I was self employed for duration but it looks like they’re… Read more »
Dawn, of course they do! I just doubled check.
I work in Kansas City ,MO and live in Kansas City ,KS. Today I went to HR and ask if they can provide me with a W2 for Kansas, both HR told me they can not give me W2 forms for Kansas because the company wont allow them to. Can I get some legal help for this situation.
Do your research before publishing. Federal form W-2 does not show marital status.
As a Recruiter, this is the question I am lied to about all the time. It is very frustrating and people will say they make $15k more than what they really make. My biggest question, do you still hire someone once you know that they have lied to you?
“…salary negotiations are already slanted toward employers and against employees.” Are you kidding me? What job market are we talking about? As someone recruiting in San Francisco and Portland, I’ll tell you it’s quite the other way around for good candidates. There is a talent shortage and employers work hard to attract the right people. Candidates can lie to gain leverage in negotiation (“I have an offer for X dollars from another company” “What company is it from?” “Well, I’m… Read more »