New York is now the latest state to ban all employers from asking about a job applicant’s salary and wage history. The law, which went into effect on January 6, 2020, expands the reach of anti-discrimination laws in New York state. At least 12 other states similarly ban such questions or otherwise regulate the use of salary history in the hiring process: Alabama, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, New Jersey, Oregon, Vermont, and Washington. Additionally, Colorado’s new law prohibiting salary history inquiries goes into effect on January 1, 2021. This New York law is another example of states prohibiting both private and public employers from asking certain things on job applications. We previously wrote about the Ban the Box movement here and here.

Basics of New York’s Law

The New York law applies to all public and private employers in New York state. But, the law does not apply when a company is engaging an independent contractor, only to companies considering applicants and employees seeking full-time, part-time or temporary/seasonal employment. It specifically prohibits employers from doing the following:

• Relying on the wage or salary history of an applicant in determining whether to offer employment to or in determining the wages or salary for that person;
• Seeking, requesting, or requiring the wage or salary history from an applicant or current employee as a condition for the individual (1) to be interviewed, (2) to continue to be considered for an offer of employment, or (3) to be employed or promoted;
• Seeking, requesting, or requiring the wage or salary history of an applicant or current employee from just about anyone (i.e., current or former employer, current or former employee, or agent of the individual’s current or former employer);
• Refusing to interview, hire, promote, otherwise employ, or otherwise retaliate against an applicant or current employee based upon prior wage or salary history;
• Refusing to interview, hire, promote, otherwise employ, or otherwise retaliate against an applicant or current employee because such applicant or current employee did not provide wage or salary history in accordance with this section;
• Refusing to interview, hire, promote, otherwise employ, or otherwise retaliate against an applicant or current or former employee because the applicant or current or former employee filed a complaint with the department alleging a violation of the law.

It’s important to note that an applicant or current employee may voluntarily – and without prompting – disclose or verify wage or salary history. (Cautious employers will carefully document such unprompted disclosures.) Additionally, an employer may confirm salary history after an offer of compensation is made and the applicant responds to the offer by providing prior salary history to negotiate for a higher wage.

Stay Tuned

Now more than ever employers must stay on top of state laws and city ordinances to make sure they are abiding by the current laws in their jurisdiction(s). More and more states are jumping on this bandwagon, and laws prohibiting questions during the application and interview process are no longer unusual. Employers who have been used to doing things a certain way now may need to change their practices to ensure compliance.