Hunton Employment & Labor Perspectives

New York joins a handful of other states when its broad prohibition on employer inquiries into applicants’ prior wage or salary information takes place today, January 6, 2020.  As detailed in our previous alert on this issue, New York previously had expansive pay equity laws in effect for public employers, but the new law expands the prohibition to private employers throughout the state.

Under the new law, all private and public employers in New York are prohibited from asking about the salary history of a job applicant. They are also prohibited from relying on salary history as a factor in deciding whether to hire or as how much to pay a successful applicant. In addition, employers may not request salary information from an applicant’s former employer or refuse to interview or hire an applicant who chooses not to reveal salary history.

If an employer receives salary history information voluntarily from the applicant, the employer may use that information to screen candidates. Further, if an applicant or employee volunteers salary history information in order to negotiate higher pay, then it is permissible for the employer to confirm the accuracy of the information provided. The New York law does not prohibit employers from considering existing employees’ salary histories when making offers of compensation in connection with promotions.

Employers should consider reviewing existing practices to ensure compliance with the new law. In addition, employees who conduct interviews should be informed of the new requirements and trained on compliance, including not asking applicants questions that constitute requests to reveal salary history and how to handle voluntary salary history revelations.

Salary history prohibitions are already in effect in Albany, Suffolk, and Westchester counties of New York, as well as New York City and other cities across the nation. Further, several other states, including but not limited to Illinois, California, Delaware, Connecticut and New Jersey already have similar salary history inquiry bans in place for all employers in the state.