New York Enacts Statewide Ban on Salary History Inquiries for All Employers

July 23, 2019
Summary
Effective January 6, 2020, an amendment to the New York Labor Law (NYLL) will prohibit all private and public employers in New York State from relying on or inquiring about salary history in employment and compensation decisions, with only limited exceptions. Similar prohibitions were previously in place in New York City and other municipalities, but the new law will mandate changes in policies for many employers throughout the rest of the state. Salary history prohibitions are part of a larger legislative effort aimed at addressing concerns about gender pay discrimination.
 
The Amendment
The new law makes it a violation of the NYLL for an employer to ask a job applicant about his or her salary history, or to rely on salary history as a factor in deciding whether to hire or how much to pay an applicant. Employers cannot require applicants to reveal salary history as a condition of consideration for a position, and cannot request salary history information from an applicant’s former employer. It is also not permissible for employers to refuse to interview or hire an applicant who exercises the right not to reveal salary history.
 
Applicants and employees are still permitted to volunteer their salary history and, if so, the employer may take it into consideration. Also, if the applicant or employee volunteers salary history information at the time an offer of compensation is made in order to negotiate higher pay, then it is permissible for the employer to take steps to confirm the accuracy of that salary history. The law makes clear that for existing employees it is permissible for the employer to consider the employees’ current salary histories when making offers of compensation in connection with promotions.
 
The law creates a private civil right of action for violations, and prevailing plaintiffs can recover damages, injunctive relief, and reasonable attorney fees.
 
The law does not supersede any federal, state, or local law that requires disclosure or verification of salary history information to determine an employee’s compensation.
 
The amendment is available at https://legislation.nysenate.gov/pdf/bills/2019/S6549.
 
Implications
Many employers in New York State are already subject to salary history prohibitions. Such prohibitions are in effect in Albany, Suffolk, and Westchester Counties, as well as New York City. Assuming employers subject to these preexisting laws are in compliance, the state law is similar enough to the preexisting laws that they should not need to make changes in order to comply with the statewide law. 
 
For employers in other areas of the state who were not previously subject to salary history prohibitions, consideration should be given to reviewing existing practices to ensure compliance with the new law. Among other things, such employers may wish to review job application and pre-employment forms, as well as their hiring manuals, to ensure that these documents do not contain or endorse requests for salary history. Also, employees who conduct interviews should be advised of the new requirements, including not asking applicants questions that could be construed as requests to reveal salary history. Interviewers also should be advised on how to proceed if an applicant voluntarily reveals salary history.
 
Salary history prohibitions are intended to address the possibility that use of past compensation history in setting pay can perpetuate inappropriate pay disparities. Proponents of these laws believe that if an applicant was underpaid in a previous job, a salary history prohibition will allow that applicant a better chance at appropriate pay in the next job. There are currently eighteen statewide salary history bans in place in the United States, and the number appears likely to grow.

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