Countdown To New York City's Salary History Ban

On October 31, 2017, New York City's salary history ban, the most recent amendment to the City Human Rights Law (CHRL), becomes effective.

The new law makes it an "unlawful discriminatory practice" for employers to (1) "inquire" about the salary history of an applicant for employment or (2) rely on salary history in determining the applicant's compensation and/or benefits, except where the applicant "voluntarily and without prompting" by the employer discloses his or her salary history.

The law reflects the continuing trend in New York and elsewhere to eliminate wage gaps based on gender, race and ethnicity. Other jurisdictions to implement similar laws restricting employers' ability to inquire about salary history include California (effective January 1, 2018), Delaware (effective December 14, 2017), Puerto Rico, Oregon (effective January 1, 2019), Massachusetts (effective July 1, 2018), Philadelphia (stayed pending legal challenge) and San Francisco ( effective July 1, 2018). Numerous other states are considering similar measures.

Scope of Coverage

Employer and Applicant Coverage

Although the law does not specifically address employer coverage, guidance in the form of FAQs recently published by the City Commission on Human Rights (CCHR) confirms that the law applies to all employers of any size that are hiring job applicants in New York City.

The Commission's guidance clarifies that the law generally does not apply to former employers who disclose information about the salary history to a hiring employer; however, it notes that such employers may be held liable if they intentionally aid and abet a violation by the hiring employer.

The Commission's guidance further confirms that most applicants for jobs in New York City are covered by the law. "Applicant," however, is not defined in the law or the guidance. An applicant Fact Sheet issued by the CCHR asserts that the law applies to both independent contractors and interns. Although this interpretation is consistent with application of the CHRL more generally, the salary history ban law itself expressly bans inquiries into "the salary history of an applicant for employment" or reliance on the salary history "for such an applicant." See Intro. 1253, Section 1, (amending Administrative Code Section 8-107(25)(b) (1), (2) (emphasis added).

The law specifically does not apply to applicants for internal transfer or promotion with their current employer. However, employers should be mindful that, depending on the circumstances, a temporary employee or subcontractor who is offered permanent employment may qualify either as an applicant for a new position, in which case the salary history prohibitions apply to them, or for internal transfer or promotion, in which case they do not.

The law also does not apply to applicants for public sector jobs where salary is governed by a collective bargaining agreement.

Agent Liability

The law's prohibition against the unlawful discriminatory practices outlined above apply not only to employers, but also to employment agencies, as well as employees or agents of the employer or employment agency. The Commission guidance clarifies that headhunters are not exempted from the law's requirements, and further notes that headhunters who qualify as employers, employment agencies or agents of an...

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