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December
19

You can’t ask about Salary History in NYC

Mayor Deblasio has signed a bill that makes it an “unlawful discriminatory practice” for employers to inquire about the salary history of a prospective employee, or to rely upon salary history unless the applicant offers the information voluntarily.  The legislation is aimed at eliminating what supporters say is one of the reasons the wage gap between men and women is perpetuated. The new law will take effect on October 31, 2017.

What the NYC Law Provides

No Inquiry About Salary History.  The legislation amends the New York City Human Rights Law by adding a provision that makes it an “unlawful discriminatory practice” for an employer to make any salary inquiry of an applicant, or the applicant’s current or former employer, or a current or former employee or agent of the applicant’s current or prior employer.  An employer is also prohibited from conducting any form of search through publicly available information for a prospective employee’s salary history.

Employer and Applicant Can Talk About Salary.  The law does not prohibit the employer and the applicant from talking about salary and other compensation and benefits being offered.  The employer can inform the applicant about the anticipated salary of the position to which the applicant has applied, and can inquire about and discuss the applicant’s salary expectations, including whether any unvested equity or deferred compensation would be forfeited by the applicant for leaving the current employer.

No Consideration of Salary History in Setting Compensation.  The law also makes it an unlawful discriminatory practice for an employer to consider an applicant’s salary history in determining the salary, benefits, or other forms of compensation for that applicant.  However, if an applicant voluntarily and without prompting provides salary history, then this information can be used to determine the salary, benefits, and other compensation, and the employer may verify the salary history.

Penalties

The Human Rights Commission may impose a civil penalty of up to $125,000 for an unintentional violation, and up to $250,000 for a “willful, wanton or malicious act.” In addition, an individual may bring a civil lawsuit for violations of the law.  The full range of relief available under the New York City Human Rights Law will be available in such a lawsuit, including backpay, compensatory damages, and attorneys’ fees.

Employer Actions

Employers should start reviewing their policies and hiring practices. Human Resources personnel, recruiters, and anyone else involved in the recruiting and hiring process must be trained as to the law’s requirements.