New York City Bans Inquiries About Applicants' Salary History

On May 4, 2017, Mayor Bill de Blasio signed a bill amending the New York City Human Rights Law that will prohibit all New York City employers from inquiring about a prospective employee's salary history. Effective October 31, 2017, it will be an "unlawful discriminatory practice" to inquire about the salary history of a job applicant or to rely on salary history to determine a prospective employee's salary, unless the applicant voluntarily shares the information. New York City's stated purpose of the law is to reduce the likelihood of perpetuating existing gender pay inequity.

Employers with operations in New York City should immediately review their recruiting and hiring practices and consult with legal counsel to ensure future compliance with the new legislation. For your convenience, an overview of the new ban on salary history inquiries is below.

What Inquiries Are Banned?

The new legislation makes it an "unlawful discriminatory practice" to make any inquiry regarding a job applicant's salary, with very limited exceptions. This includes asking the applicant, the applicant's current or former employer, or a current or former employee or agent of the applicant's current or prior employer. The employer is also prohibited from relying on an applicant's salary history to determine the salary, benefits, or other forms of compensation, including in the negotiation of a contract. For example, if the prospective employer discovers the applicant's salary history during a background check, it may not be considered in any salary determination.

May an Employer Ever Consider Salary History?

Notwithstanding the above, if an applicant "voluntarily and without prompting" discloses his or her salary history, then the employer may use this information to help determine the salary, benefits, and other compensation of the position. In such cases, the employer may also verify the salary history.

What Is Included in "Salary History"?

"Salary history" includes current or prior wages, benefits, and any other form of compensation. Salary history does not include any objective measure of the applicant's productivity, such as revenue, sales, or other production reports.

May Employers and Applicants Discuss Salary at All?

Yes. Employers and applicants may discuss:

the proposed or anticipated salary (or salary range) for the position; the applicant's salary expectations...