New York City Updates Their Salary History Ban

The New York City Commission on Human Rights (Commission) issued a guidance to assist employers in understanding the New York City’s Salary History law, which has been effective since October 31, 2017. As previously stated in our prior May 11, 2017 compliance article, “It is an unlawful discriminatory practice for employers to inquire about the salary history of an applicant for employment or rely on the wage history of an applicant in determining the salary, benefits, or others compensation for such applicant during the hiring process, including the negotiation of a contract.”

Internal transfer or promotion with their current employer;
Applicants for public sector jobs for which salary is governed by a collective bargaining agreement; and
People, including former employers, who disclose information about salary history to the hiring employer.

Inquire about objective indicators of an applicant’s productivity which can include expectations concerning revenues or sales attributable to the applicant; and
Discuss whether the applicant will be forfeiting equity or deferred compensation by taking the position.

If an applicant voluntarily discloses their salary history without prompting, the employer can discuss and inquire about the applicant’s history, verify the applicant’s representations, and rely on the applicant’s salary history in determining an offer. The guidance clarifies that a voluntary disclosure of salary history is “without prompting” when the applicant does not “think that the employer encouraged the disclosure based on the overall context and the employer’s words or actions.”

The guidance reminds employers to take into consideration of the NYC Human Rights Law when conducting background checks for criminal and credit history. Specifically, “In circumstances where an employer is legally permitted to perform a background check before a conditional offer has been made, or decide to run a background check after a conditional offer, the Commission recommends that employers specify to reporting agencies the information about salary history excluded from the report.”

During the hiring process, ;
, even if such questions are framed as “voluntary;” and
to prohibit inquiries about applicants’ salary history.

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