New York State Issues Guidance on Salary History Ban
Since 2017, employers in New York City have been subject to the New York City Salary History Ban. Under the City Ban, employers may not ask an applicant for employment about his or her salary history, search publicly available records to find an applicant’s salary history, or rely on the applicant’s salary history to determine the salary, benefits, or other compensation to be offered, subject to certain exceptions.
As of January 6, 2020, all employers hiring employees in New York State must also comply with the New York State Salary History Ban, which expands on the City Ban in several key respects. Most notably, while the City Ban is clear that it does not apply to applicants for internal transfer or promotion with their current employer, the State Ban expressly applies to current employees, as well as applicants for employment.
Under the State Salary History Ban, employers may not take any of the following actions:
Rely on the salary history of an applicant in determining whether to offer employment or in determining the salary for the applicant
Seek, request, or require salary history from an applicant or current employee as a condition to be interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion
Seek, request, or require salary history of an applicant or current employee from a current or former employer
Refuse to interview, hire, promote, or employ an applicant or current employee based upon salary history
Refuse to interview, hire, promote, or employ an applicant or current employee because the applicant or current employee did not provide his or her salary history
An employer may confirm an individual’s salary history only if, at the time an offer of employment with compensation is made, the individual responds to the offer by providing his or her salary history to support a higher salary than offered.
Recently, New York State issued guidance on the State Salary History Ban which clarifies several questions not explicitly addressed by the law. A major issue addressed by the guidance is the extent to which the State Ban restricts employers from considering the salary history of their current employees, particularly in the context of routine raises. The guidance clarifies that the State Ban prohibits employers from requesting prior salary information from current employees as a condition of being interviewed or considered for a promotion. Employers may consider information already in their possession regarding a current employee, such as a current employee’s current salary or benefits, when calculating a raise; however, the employer may not ask that employee about his or her salary from prior jobs.
The New York State Guidance also clarifies the following:
“Salary history” includes both compensation and benefits, not just base salary or wages.
An employer is permitted to ask an applicant for his or her salary expectations.
The State Ban applies to part-time, seasonal, and temporary workers, but does not apply to independent contractors, freelance workers, or other contract workers unless they will work for the employer through an employment agency.
The State Ban applies to any position that will be based primarily in New York State, regardless of where the employer is located or where the interview process for the position takes place.
If an individual voluntarily and without prompting discloses salary history information, an employer may consider that information when determining the salary for that person. The guidance does not detail what factors may be examined when determining whether a disclosure was made “voluntarily and without prompting,” although guidance under the City’s Ban indicates that the analysis is based on the overall context of the communication, including the employer’s words and actions. However, employers should exercise caution even when relying on voluntarily disclosed salary information, as salary history is not a defense to a pay equity claim under the New York Labor Law.
Including an “optional” salary history question on a job application is not permitted.
Employers may ask applicants and current employees about their salary history if they are required to do so by Federal, State, or Local law, but only if the relevant law is in effect as of January 6, 2020.
Employers should review their recruitment and application materials for compliance with the New York State and New York City Salary History Bans, and educate interviewers and hiring staff regarding the discussion of salary history and compensation during the recruitment process.
If you have any questions regarding compliance with the New York State and New York City Salary History Bans, please contact Amanda M. Baker at (212) 324-1715, or any attorney at the Firm.
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