New York City Commission on Human Rights Publishes “Frequently Asked Questions” Addressing Salary History Ban Taking Effect October 31, 2017

Job Applicant and Employer Fact Sheets Also Published October 12, 2017
On October 31, 2017, it will become an unlawful discriminatory practice in New York City for employers to ask about a job applicant’s salary history or to rely on the applicant’s salary history in determining the compensation to be offered (with certain exceptions). For further background on the law, please see our April 20 post, New York City Council Passes Bill Banning Inquiry Into Salary History in Hiring, and our May 5 post, New York City’s Mayor Signs Into Law Bill Banning Inquiry Into Salary History in Hiring.

The New York City Commission on Human Rights recently published three Frequently Asked Questions (FAQ) documents that contain its views regarding the salary history ban: (1) a general set of FAQs; (2) a set of FAQs entitled “Job Applicant Fact Sheet: Protections Against Inquiries into Job Applicant’s Salary History”; and (3) a set of FAQs entitled “Employer Fact Sheet: Protections Against Inquiries into Job Applicant’s Salary History.” 

The Employer and Job Applicant fact sheets are largely identical in content and generally restate the provisions of the law in more accessible language.

The general set of FAQs group questions and answers into five categories: “General scope of coverage under the Law”; “What employers can and cannot do to learn about applicants’ salary expectations”; “How ‘compensation’ is defined”; “Miscellaneous”; and “Best Practices.” Several of the more interesting statements in the main FAQs are:
  • Extraterritorial application.  The FAQs state the Commission’s view that the law “may apply” if “the hiring employer asks a job applicant about their salary history during a job interview that occurs in New York City,” even if the employer is hiring for a job outside the City (emphasis added). The Commission’s position that the law “may” apply to limit communications concerning jobs outside the City is not supported by legal precedent. The New York State Court of Appeals has held that the New York City Human Rights Law does not apply where the impact of the unlawful conduct is felt outside of New York City. Hoffman v. Parade Publ’ns, 15 N.Y.3d 285, 291 (2010) (law’s protections are confined “to those who are meant to be protected—those who work in the city”); see also Hardwick v. Auriemma, 983 N.Y.S.2d 509, 511-12 (1st Dept. 2014). The Commission acknowledges that the law “does not apply where the applicant simply resides in New York City, but is interviewed outside of New York City and will work outside of New York City.”
  • Former employers.  The FAQs state that the law would not impose liability on former employers that disclose salary history information to the hiring employer, unless the disclosure were done with an intent to violate the law.
  • Job applications.  The FAQs state that a “job application can request information about applicants’ compensation expectations or demands, but may not include a request for information about applicants’ salary history, even if the employer makes clear that a response is voluntary.” An application that provides for disclosure of salary information but that contains a disclaimer that the request is voluntary is not sufficient, in the Commission’s view, to avoid liability.
  • Publicly available compensation information.  The FAQs do not opine specifically on the role of compensation vendors that provide information about prevailing compensation levels, but state that employers “may search for general information about industry compensation standards” so long as they do not search public information in order to “uncover the salary of a specific applicant.”
  • Definition of voluntary disclosure.  “A disclosure of salary history is ‘without prompting’ 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.”
  • Foreign law.  Unlike the law’s exemption for local, state or federal law that require the disclosure of salary history, there is no exemption for foreign or international law requiring the same.
  • Headhunters.  As the law makes clear, agents of an employer, including headhunters and recruiters, are bound by the law. The FAQs recommend, “To protect against liability, headhunters should obtain written confirmation from job candidates that they consent to the disclosure of their salary history.” Likewise, employers should “obtain a copy of the applicant’s written consent authorizing the headhunter to disclose that information before relying on a headhunter’s representations about an applicant’s salary history.”
  • Competing Offers.  The Commission states that “[a] prospective employer can ask an applicant about competing offers and counter offers that the applicant has received and the value of those offers.”
  • Corporate Acquisitions.  The FAQs state that the acquiring company may obtain salary information about the target company’s employees during the due diligence process because they are not “job applicants.” 
  • Best Practices.  The FAQs suggest three best practices for employers: (1) “[d]uring the hiring process, focus questions on applicants’ salary demands, skills, and qualifications”; (2) “[e]nsure that job applications and other forms do not include questions about applicants’ salary history, even if such questions are framed as ‘voluntary’”; and (3) “[m]odify written policies and educate interviewers and hiring staff to prohibit inquiries about applicants’ salary history.”
The Commission’s FAQs do not carry the force of law. The FAQs nonetheless represent the current views of the Commission and bear consideration by employers in their preparations for the effectiveness of the new law.