Salary History Ban - What You Need To Know

TOP Salary History Ban - What You Need To Know
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May a prospective employer ask an applicant about their current or past salary, compensation or benefits? 

No. Effective January 6, 2020, Labor Law Section 194-a prohibits an employer from, either orally or in writing, personally or through an agent (directly or indirectly), asking any information concerning an applicant’s salary history information. This includes compensation and benefits. The law also prohibits an employer from relying on an applicant’s salary history information as a factor in determining whether to interview or offer employment at all or in determining what salary to offer. Please note that additional protections under local laws may also apply. 

An employer may ask an applicant for their salary expectations for the position instead of asking what the applicant earned in the past. 

Who is an “applicant?” 

An “applicant” is someone who took an affirmative step to seek employment with the employer and who is not currently employed with that employer, its parent company or a subsidiary. This includes part-time, seasonal and temporary workers, regardless of their immigration status. 

Does this law apply to current employees? 

Yes. Employers cannot request prior salary history information from current employees as a condition of being interviewed or considered for a promotion. However, employers may consider information already in their possession for existing employees (i.e. a current employee’s current salary or benefits being paid by that employer). For example, an employer may use an employee’s current salary to calculate a raise but may not ask that employee about pay from other jobs. 

What should an employer do to comply with the new Section 194-a of the Labor Law? 

All employers should review their job applications and related processes and train hiring personnel to ensure compliance. For example, an employer should eliminate questions seeking an applicant’s current or past salary from all job applications, unless required by law. Additionally, an employer may wish to proactively state in job postings that it does not seek salary history information from job applicants. 

May an applicant voluntarily disclose salary history information to a prospective employer? 

Yes. The Labor Law permits an applicant to voluntarily disclose their salary history information to a prospective employer, for example, to justify a higher salary or wage, as long as it is being done without prompting from the prospective employer. If an applicant voluntarily and without prompting discloses salary history information, the prospective employer may factor in that voluntarily disclosed information in determining the salary for that person. An employer may not, for example, pose an “optional” salary history question on a job application seeking a voluntary response. 

May an employer ask someone other than the employee or applicant about the employee or applicant’s prior salary history? 

No. Employers may not seek or obtain such information from a separate source of the information, such as by asking an applicant’s former employer. 

An employer may seek to confirm wage or salary history only if an applicant voluntarily discloses such information. An employer, however, is prohibited from relying on prior salary to justify a pay difference between employees of different or various protected classes who are performing substantially similar work as this violates Section 194 of the Labor Law. 

Is an employer required to provide the pay scale or salary range for a position? 

The Labor Law does not require an employer to post or set a pay scale for an open position. However, collective bargaining agreements may include such requirements. 

Is an applicant protected from retaliation for complaining about a potential violation or refusing to provide their salary history? 

Yes. The Labor Law specifically prohibits an employer from retaliating against an employee for refusing to provide their salary history or complaining about an alleged violation of the Labor Law. 

What should an applicant do if they believe they have been retaliated against for refusing to provide salary history information? 

An applicant who believes that they have been retaliated against should contact the Department of Labor’s Division of Labor Standards: Phone: 888-525-2267 E-mail: [email protected] 

May an employer inquire about salary history information required by Federal, State or Local Law? 

Yes. However, employers may require salary history information only if it is required pursuant to Federal Law, State or local law in effect as of January 6, 2020, the effective date of Section 194-a of the Labor Law. 

Does this law apply to New York City employers or to public employers? 

Yes. It applies to all public and private employers in New York State, including New York City and public authorities.

Does this law cover independent contractors? 

This law does not apply to bonafide independent contractors, freelance workers or other contract workers unless they are to work through an employment agency. 

Does this law apply to jobs based in New York State even if the employer is not based in New York State? 

Yes. This law applies to any position that will be based primarily in New York State, even if the interview process takes place virtually, via telephone or in another state. 

How is the law enforced and what is an employee’s right of redress? 

Individuals believing an employer violated this law may bring a civil court action against such an employer or they may contact the Division of Labor Standards.

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