Amendments to the Labor Law Regarding Salary History Inquiries

September 06, 2019 Amendments to the Labor Law Regarding Salary History Inquiries

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KEEPING YOU INFORMED…

We are writing to inform you about an amendment to the New York Labor Law banning employers from making salary history inquiries.

Many states and local governments (most recently, Suffolk County, effective June 30, 2019, as well as Westchester County, Albany County and New York City) have enacted bans on salary history inquiries. New York State’s new salary history law, which will become effective on January 6, 2020,[1] applies to all employers (including individual employers, New York State and its municipalities and recruiters). In general, it prohibits them from:

      1. Relying on an applicant’s wage or salary history when determining whether to offer employment or determining that individual’s compensation;
      2. Seeking or requiring (verbally or in writing) that an applicant or current employee provide wage or salary history “as a condition to be interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion”;
      3. Seeking or requiring (verbally or in writing) wage or salary history of an applicant or current employee (or his/her agents) from that individual’s current or former employer (or their agents), a current or former employee (or their agents);
      4. Refusing to interview, hire, promote, employ or otherwise retaliate against an applicant or current employee based upon prior wage or salary history because he/she did not provide wage or salary history or because he/she filed a complaint alleging a violation of the State salary history law.

Unlike the New York City and Suffolk County salary history laws, the State law does not prohibit employers from conducting a search of public records to obtain an applicant’s wage or salary history. This information is often available for individuals who are, or were previously, employed by a public employer.

An applicant (or an employee) may voluntarily disclose salary history for various purposes including, but not limited to, salary negotiations. A voluntary disclosure of salary history means that the employer did not prompt or encourage the disclosure of this information. In other words, it is permissible for an employer to confirm salary history if this information is volunteered by an employee during salary negotiations as a basis for desiring higher compensation than what was offered.

Employers found to have violated this law may be required to pay compensatory damages (e.g., lost wages), as well as reasonable attorneys’ fees. The law also gives courts the authority to award injunctive relief.

Employees who have greater rights pursuant to collective bargaining agreements, employment contracts, or other laws will not be impacted by the new law. This law may supersede the Westchester salary history law. Westchester’s law provides that a future similar State law on this subject would make the Westchester law null and void after a County resolution that the State law is the same or substantially similar. For Suffolk County employers, it is unclear what the impact will be because the Suffolk County law does not contain a similar provision.

We recommend that you review your employment applications and eliminate any questions inquiring about salary history. In addition, it is vital that you inform employees who are responsible for interviewing and hiring to not make inquiries about an employee’s salary history. The law does not specify that an employer will be held legally responsible for the activities of an outside recruiting firm. As a best practice, though, if you utilize recruitment firms, be sure that they know that salary history inquiries are prohibited for any work performed on your behalf unless there is a voluntary disclosure during salary negotiations as discussed above.

If you would like advice on this legislation, please contact Alyson Mathews or any of our other attorneys at 631-694-2300.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2019

[1] This law does not supersede any preexisting federal, State or local law requiring “the disclosure or verification of salary history information to determine an employee’s compensation.”