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New York City to Ban Employers from Inquiring about a Job Applicant’s Salary History

April 2017Employment Update

The New York City Council has passed legislation that would prohibit employers from making inquiries regarding the salary history of job applicants, and from relying upon job applicants’ wage history during the hiring process. Mayor Bill de Blasio is expected to sign the bill into law and it will become effective 180 days following his signature.

What is Prohibited?
The bill, which applies to New York City employers with four or more employees, amends the New York City Human Rights Law to make it an “unlawful discriminatory practice” to:

  • Make any inquiries about an applicants’ salary history; or

  • Rely on an applicants’ salary history in determining the salary, benefits, or other compensation for that applicant during the application process.

The bill defines “inquiries” broadly and prohibits not only questions or statements made directly to job applicants, but also questions or statements made to any job applicants’ current or prior employer, and any searches of publically available records for the purpose of obtaining information about salary history. It does not, however, include statements made to an applicant concerning a position’s proposed salary range.

“Salary history” is defined to include an applicants’ current or prior wage, benefits or other compensation.

What is Permitted?
Employers are permitted to consider and verify salary information for the purpose of formulating salary, benefits and compensation where prospective employees voluntarily and without prompting disclose their salary history.

Employers may also, without inquiring about salary history, engage in discussions with an applicant about his or her salary expectations.

The bill does not bar employers from verifying an applicants’ background information; however, if the employer inadvertently learns about an applicants’ salary history during this process, the employer may not rely upon such information for determining compensation during the hiring process.

Exceptions
The bill does not extend to applicants for internal transfer or promotion with their current employer, or public employees whose salaries, benefits or other compensation are determined by collective bargaining agreements. Moreover, the law would not apply where federal, state, or local law specifically authorizes disclosure or verification of salary history or “specifically requires knowledge of salary history to determine an employee’s compensation.”

Four Proactive Steps Employers Can Take:
New York City employers should take the following steps to ensure that they are in compliance once the law takes effect:

  • Review their policies and practices to ensure compliance with the new legislation.

  • Train human resources personnel, and anyone involved in interviewing candidates, on the new law and the prohibition about asking job applicants about their salary history.

  • Review their job application and background check forms to ensure that they do not include requests for salary history information, and make any necessary revisions.

  • Document any instances where an applicant voluntarily discloses salary history.


For more information on this issue or other employment matters, please contact:

Mara B. Levin at [email protected] or +1 212 592 1458
Carol M. Goodman at [email protected] or +1 212 592 1465
Jonathan Adler at [email protected] or +1 212 592 5936

© 2017 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.