labor law

New York Employers Cannot Ask Job Applicants About Their Past Salaries

Business Columns

New York Employment Laws You Need To Know, Effective January 2020 

Part Two in a Five-Part Series

By Robert G. Brody and Lindsay M. Rinehart

On July 10, 2019, New York Governor Andrew Cuomo signed into law a bill that amends New York Labor Law to include a prohibition on employers making wage or salary history inquiries. The underlying issue is women are traditionally paid less than men for the same jobs.  Therefore, any inquiries about prior wages may well serve to perpetuate prior wage discrimination against women.

An Executive Order signed by Cuomo in 2017 already prohibited these types of inquiries by state employers, but not private employers. Now, this ban will apply to every employer – public or private. While this prohibition is new for private employers throughout most of the state, this has been the law in New York City since October 2017 and in Westchester County since July 2018.

For employers all across the state, this is your friendly reminder:  Don’t ask applicants about past salaries!

Here’s the details of what you need to know:

The Law

The stated purpose of the new law is to prevent further wage discrimination by prohibiting employers from asking for wage or salary history as a requirement for a job interview, job application, job offer, or promotion.  Specifically, employers may not:

  1. rely on the wage or salary history of an applicant in determining whether to offer employment or in determining the wages or salary for the applicant;
  2. seek, request, or require (orally or in writing) the wage or salary history from an applicant or current employee as a condition to be interviewed, considered for employment, or to get a job or promotion;
  3. seek, request, or require (orally or in writing) the wage or salary history of an applicant or current employee from a third party; or
  4. refuse to interview, hire, promote, employ, or otherwise retaliate against an applicant or current employee:
    1. based upon prior wage or salary history;
    2. because they did not provide wage or salary history; or
    3. because they filed a complaint alleging a violation of the law.

5. notify any employee terminated from employment, in writing, of the exact date of such termination as well as the exact date of cancellation of employee benefits connected with such termination. In no case shall notice of such termination be provided more than five working days after the date of such termination.

What does this mean? It means employers cannot ask for, or rely on, information regarding someone’s prior salary when interviewing/hiring a new employee or promoting a current employee. Note: The law does not prohibit an applicant or current employee from voluntarily, and without prompting, disclosing or verifying wage or salary history.  The key for employers is not using or relying on the information to set the individuals compensation level.

The Take Away

Employers should review their applications for employment and train their supervisors on this new law.

While damages for noncompliance with the law aren’t astronomical – they have the potential to cost you significant time and money fighting a legal battle.  The law allows applicants and employees who are asked these questions to file a civil action against the employer, with the possibility of getting an injunction and recovering their attorney’s fees.  (Of course, this is in addition to your own attorney’s fees!)  Simply put, that’s time and money you can save by simply taking the salary history questions off the table.

Robert G. Brody is Founder and Managing Member and Lindsay M. Rinehart is an Associate at the law firm Brody and Associates, LLC. and or phone (203) 454-0560.