[co-author: Nicolas Lussier]
Seyfarth Synopsis: Nevada has enacted legislation that will require employers to provide applicants and some current employees with wage ranges for positions. The new law also makes it unlawful for employers to seek or rely on an applicant’s wage or salary history (even if this information is voluntarily provided), or take certain actions against an applicant who refuses to provide his or her wage or salary history.
Employers Must Disclose Wage or Salary Ranges or Rates to Applicants and Some Current Employees
Effective October 1, 2021, Nevada will require employers to provide wage or salary range or rate information to new hire applicants and to employees who apply for promotions or transfers. The Nevada law follows the nationwide trend toward greater pay transparency and similar wage range disclosure laws in California, Colorado, Connecticut, Maryland, Washington State, the City of Toledo, and the City of Cincinnati. Similar to laws in Connecticut, Colorado and Washington, the law will require disclosure to applicants and, to some extent, current employees.
Under the new law, Nevada employers and employment agencies must proactively provide the “wage or salary range” or “rate” for a position as follows:
- To applicants who have completed an interview for a position.
- To current employees for a promotion or transfer to a new position if the employee has
- applied for the promotion or transfer;
- completed an interview for the promotion or transfer or been offered the promotion or transfer; and
- requested the wage or salary range or rate for the promotion or transfer.
“Wage or salary range” and “rate” are not defined in the law.
Salary History Ban
The new law also restricts employers from inquiring into an applicant’s salary history. Specifically, the new law prohibits an employer or an employment agency from:
- Seeking the wage or salary history of an applicant for employment;
- Relying on the wage or salary history of an applicant to determine whether to offer employment to the applicant or the rate of pay for the applicant; or
- Refusing to interview, hire, promote, or employ an applicant, or discriminating or retaliating against an applicant if the applicant does not provide wage or salary
“Wage or salary history” is defined as “the wages or salary paid to an applicant for employment by the current or former employer of the applicant. The term incudes, without limitation, any compensation and benefits received by the applicant from his or her current or former employer.”
Unlike many salary history bans, the Nevada law does not provide an exception for relying on information voluntarily disclosed by an applicant. The Nevada law, similar to the salary history ban in Illinois, does not allow employers to consider or rely on the voluntary disclosures as a factor in determining whether to offer a job applicant employment or making an offer of compensation. This makes Nevada’s salary history ban law one of the more onerous salary history bans.
That said, nothing in the Nevada law prohibits an employer from asking prospective employees about their wage or salary expectations. Quite the opposite, the law explicitly provides that an employer may ask for such information.
The above requirements apply to private employers and employment agencies. The law defines an “employer” as a public or private employer in the State of Nevada. The statute also separately specifies that the above requirements do not apply to “[a]ny employer with respect to employment outside [Nevada].”
An “employment agency” means “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer.”
Enforcement, Penalties and Damages
There is a private enforcement mechanism discussed in the statute. A person may file a complaint with the Labor Commissioner; and upon receipt of a right-to-sue notice, may bring a civil action in district court against the alleged violating party.
Under the law, employers may be subject to administrative penalties. That is, in addition to any other remedy or penalty, the Labor Commissioner may impose an administrative penalty of not more than $5,000 for each violation against the violating employer or staffing agency. The Labor Commissioner may also recover any costs associated with the proceeding (including attorney’s fees).
In addition, a court may award an employee the same legal or equitable relief that may be awarded to a person pursuant to Title VII of the Civil Rights Act of 1964, if the employee is protected by Title VII.
Nevada employers should review their personnel practices to ensure that they have a system in place for timely responding to applicant and employee requests for wage or salary range or rate information. Employers should also consider training hiring managers, talent acquisition, and human resources employees on the amendments. In addition to training on the wage disclosure requirements, special attention should also be paid to the salary history ban’s implied prohibition on considering even voluntarily disclosed compensation history information.
As always, Seyfarth’s Pay Equity Group’s attorneys are available to assist employers in navigating these new requirements and ensuring that they are ready for the ongoing trend toward greater pay transparency generally.