Back in June, we discussed New York City's decision to ban employers from inquiring into the salary history of prospective employees. The New York City Commission on Human Rights, which enforces this and other local employment discrimination laws, has now published some official guidance on how the ban will work. It is important for all employers and employees to take note of these rules, as they take effect on October 31.
What Employers Cannot Ask You Regarding Prior Compensation
The salary history law will basically apply to all employers who hire job applicants in New York regardless of the size of the business. While an employer may still seek information about a job applicant's “compensation expectations or demands,” the inquiry may not extend to a “request for information about applicants' salary history.” Nor can an employer contact an applicant's former employer or even “search publicly available information” to learn the applicant's salary history.
In the case of employees who work primarily on commission, such as salespersons, an employer cannot make any inquiries into the amount of any such commissions previously earned by the applicant in similar positions. It is acceptable to ask an applicant what kind of metrics were used to assess job performance, including the “volume, value, or frequency of sales.”
The law also permits an applicant to make a “voluntary” disclosure of his or her own salary history. There can be no “prompting” on the part of the employer. According to the Human Rights Commission, “if the average job applicant would not think that the employer encouraged the disclosure based on the overall context and the employer’s words or actions,” it is considered “without prompting.”
It is also important to note the salary history ban only applies to the initial hiring process. An employer is free to make salary history inquiries after the applicant is hired and actually working for the business. Salary history inquiries are permissible when an employer is considering an “internal transfer or promotion.” However, if an employer is considering hiring a temporary employee or subcontractor for a permanent position, the law may apply. The Human Rights Commission said it would consider such scenarios on a case-by-case basis.
Finally, New York City public agencies are already prohibited from asking about salary history under an Executive Order issued by the Mayor, and the Human Rights Commission said this order remains in effect to the extent it provides greater protections than the new law. For instance, the executive order does cover internal transfers and promotions.
Are You a Victim of the Gender Wage Gap?
The salary history ban is part of a larger effort to close the “gender wage gap,” i.e. the problem of women earning less than men for doing identical work. If you have been the victim of sex discrimination with respect to compensation, you should speak with a qualified New York employment law attorney right away. Contact the Law Offices of Mahir S. Nisar in New York City today if you require immediate legal assistance.