On May 4, 2017, Mayor de Blasio signed a bill into law aimed at eliminating the wage gap between men and women.  When the law goes into effect on October 31, 2017, it will be an “unlawful discriminatory practice” for NYC private employers to ask for salary history information from an applicant, an applicant's current or former employer, or from an employee or agent of that employer. Employers will also be prohibited from conducting any form of search through publicly available information for a prospective employee’s salary history.  The employer may not consider an applicant’s salary history in determining the salary, benefits, or other forms of compensation for that applicant.  “Salary history” includes not only an applicant’s current or prior wage, but also benefits and any other form of compensation he or she may have received. 

Q: If the applicant discloses his/her salary history, can a NYC employer verify the salary history? 

A: Maybe. The law precludes a NYC private employer from relying on the salary history of an applicant to determine the salary, benefits or other compensation of that applicant, during the hiring process, unless the applicant voluntarily and without prompting discloses his or her salary history to the employer.  Employers should develop a process for documenting when an applicant voluntarily discloses salary history and other compensation information.

Take Away:

NYC private employers should update their job applications, review and revise their background check forms and phone screen and interview materials and train staff for compliance. Questions regarding salary history must be eliminated.  Anyone involved in the recruiting and hiring process should be trained as to the law’s requirements, including ways to avoid claims that salary history was disclosed involuntarily or at the prompting of the interviewer. A process for documenting when an applicant voluntarily discloses salary history and other compensation information should be implemented. Employers in NJ and areas outside of NYC may also want to take similar steps over the coming months as this is a trend that is likely to come their way.

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