New York City Passes Salary History Legislation

Posted: April 12, 2017

Move over ban the box – a new legislative trend has arrived as 2017 appears poised to be the year of salary history legislation. On April 5, the New York City Council approved and sent Int. 1253-2016 to the Mayor’s desk for signature. The law will take effect 180 days after being signed. Under the bill, it is an unlawful discriminatory practice for an employer, employment agency or employee or agent of the employer to inquire about the applicant’s salary history or to rely on the applicant’s salary history in determining the salary, benefits or other compensation during the hiring process. “To inquire” is defined broadly:

To communicate any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history, but does not include informing the applicant in writing or otherwise about the position’s proposed or anticipated salary or salary range.

The bill defines salary history to include “the applicant’s current or prior wage, benefits or other compensation.” Salary history does not include “any objective measure of the applicant’s productivity such as revenue, sales, or other production reports.” However, employers may discuss the applicant’s expectations regarding salary, benefits or other compensation including any compensation that an applicant may forfeit or have cancelled by leavening their current employer. Additionally, an employer may consider salary history if an applicant voluntarily discloses that information. There are several exceptions under the law including any actions taken pursuant to a local, state or federal law that specifically authorizes disclosure or verification of salary history information, and current employees looking to be transferred or promoted. Further, the law does not apply to any attempt by an employer, employment agency or employee or agent of the employer to verify any non-salary related information (including via a background check). If the background check discloses the applicant’s salary history, the employer cannot then rely on that information to determine the salary, benefits or other compensation during the hiring process. New York City joins Philadelphia and Massachusetts which have already taken the step to prohibit salary history inquiries. Similar legislation is pending in several jurisdictions including Washington, Connecticut, New York (state), Maryland and Oregon.