Earlier this year, New York Sate joined other states and localities in passing a law banning inquiries about an individual’s salary history. The new State law goes into effect on January 6, 2020.
The State law prohibits employers from relying on an applicant’s wage or salary history to determine whether to make an offer of employment or to determine the individual’s wages or salary. Under the law, employers may not seek an applicant or employee’s wage or salary as a condition of being interviewed, considered for employment or promotion. An employer also cannot refuse to interview, hire, promote or otherwise retaliate against an applicant or a current employee, including if they refuse to provide their wage or salary history or for filing an administrative complaint.
The law does carve out very narrow exclusions, including the ability to confirm a person’s wage or salary history after the employer has made an offer that includes an offer of compensation and only if the person responds to that offer by providing prior wage or salary information to support a higher wage or salary. The law does not prevent applicants or employees from “voluntarily and without prompting” disclosing or verifying their salary history for the purpose of negotiating wages or salary with employers. The State law is silent as to whether an employer can ask about a person’s salary expectations or desired salary,
which leaves some unclear waters for employers to navigate.
Employers in other states as well as within New York State may already be
subject to salary history ban laws already in effect including in New York City, Albany, Suffolk and Westchester County. Employers are required to comply with both State and local law and should note that, in some respects, the State law or applicable city/local law may provide greater restrictions.
The State law arms individuals with a private right of action, allowing them to bring a civil action for money damages and/or injunctive relief and to potentially recover attorneys’ fees.
Employers should review hiring materials (including applications) and review interview policies and practices to ensure compliance with applicable salary history ban(s) and should train supervisors and others involved in hiring about restrictions and permissible practices under these laws.
If you have any questions about this, please contact us at 212-644-1310.