Effective January 6, 2020, Labor Law Section 194-a prohibits an employer from seeking, requesting, or requiring, orally or in writing, the wage or salary history of an applicant or current employee as a condition to being interviewed, determining whether to offer employment, or determining salary for that individual.
Employer Considerations and Action Items:
- Employers should review their job applications and related processes and eliminate questions seeking an applicant’s current or past salary.
- Train hiring personnel to ensure compliance.
- Consider stating in employer job postings that the employer does not seek salary history information from job applicants.
Who is Subject to the Law?
The law applies to all public and private employers in New York State. Employers with employees in New York State should be cognizant that this law applies to any position that will be based primarily in the state, even if the interview process takes place virtually, via telephone or in another state.
Please note employers may also be subject to additional prohibitions under the New York City salary ban. For additional information, please review our prior article “NYC Salary History Inquiry Ban to Take Effect October 31, 2017.”
Who is protected under the law?
The law applies to both applicants and employees. An “applicant” is someone who took an affirmative step to seek employment with the employer and who is not currently employed with that employer, its parent company or a subsidiary. Employers cannot request prior salary history information from current employees as a condition of being interviewed or considered for a promotion. The law also applies to employment agencies, recruiters, or any other company “otherwise connecting applicants with employer.”
The law does NOT apply to independent contractors, freelance workers or other contract workers.
Are there permitted circumstances for use of salary history information?
The law permits an applicant to voluntarily disclose, or verify, their salary history information to a prospective employer, long as it is being done without prompting from the prospective employer. If that is the case, the employer is permitted to factor in that voluntarily disclosed information in determining any salary. However, employers should remember that they are prohibited from relying on prior salary information to justify a pay difference between employees of different or various protected classes who are performing substantially similar work as this violates New York’s Equal Pay Act ( Section 194 of the Labor Law.)
Employers are also permitted to consider information already in their possession for existing employees (i.e. a current employee’s current salary or benefits being paid).
Is an applicant protected from retaliation?
The law specifically prohibits an employer from retaliating against an employee for refusing to provide their salary history or complaining about an alleged violation.
How is the law enforced and what is an employee’s right of redress?
Individuals believing an employer violated this law may bring a civil court action against an employer or they may contact the Division of Labor Standards.
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