Attorney Blog, Human Resources

New York and New Jersey Ban Employers from Asking About Salary History

Attorney Harrison Oldham

New York and New Jersey have recently enacted laws prohibiting employers from inquiring about or relying on salary history information in making hiring decisions. The laws, which take effect during the first week of 2020, are meant to help battle salary inequality and to prevent employers from using salary history information as a condition of employment.

Specifically, New York’s salary history ban prohibits employers from: (1) relying on wage or salary history in determining whether to offer employment to, or in determining the wages or salary of, a job applicant; (2) requesting or requiring the wage or salary history of a job applicant or employee as a condition of being interviewed, continuing to be considered for employment, or employment or promotion; or (3) refusing to interview, hire, promote, employ a job applicant or current employee (a) based on their wage or salary history, (b) because they did not provide their wage or salary history in accordance with the law, or (c) because they filed a complaint with the New York State Department of Labor alleging a violation of the law.

Employers in New York may, however, obtain information about an employee or applicant’s wages in the following circumstances:

  1. When the applicant or employee voluntarily, and without prompting, discloses or verifies salary history;
  2. When the employer is seeking to confirm wage history—so long as the information is being sought after an employment offer has been made, and the offeree is seeking to negotiate wages that are higher than what the employer previously offered;
  3. When verification of salary history information is required by any federal, state, or local law.

Employers who violate this law may be subject to a civil action for compensation for any damages sustained as a result of such violation, as well as injunctive relief and attorneys’ fees.

In addition, New Jersey’s salary history ban prohibits employers from: (1) screening a job applicant based on their salary history; or (2) requiring a job applicant’s salary history to satisfy any minimum or maximum criteria (ostensibly salary or compensation).

Importantly, the New Jersey law also contains exceptions.  For instance, New Jersey’s salary history ban allow an employer to consider salary history if it is disclosed “voluntarily” and “without prompting.” In addition, under New Jersey’s salary history ban, an employer may request written authorization from a job applicant to confirm salary history “after an offer of employment that includes an explanation of the overall compensation package has been made.”

One important difference between New York’s salary history ban and New Jersey’s salary history ban is that New York’s ban applies to job applicants and current employees whereas New Jersey’s ban only applies to job applicants. Accordingly, employers in New York should be careful not to consider salary history information of a current employee who is seeking a transfer, promotion, or reemployment opportunity. Unlike New York’s ban, New Jersey’s ban does not apply to applications for internal transfer or promotion and use of previous knowledge obtained as a consequence of prior employment.

Accordingly, employers in New York and New Jersey should become familiar with the requirements of the new laws in their respective states to understand the new requirements and restrictions. In addition, employers should review their recruiting and hiring practices for compliance, including by removing improper questions on employment applications and ensuring that interviewers and hiring personnel are properly trained. This may include training hiring personnel to document any instance in which salary history is voluntarily disclosed.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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