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New law bans New York City employers from asking for salary history

by Charles H. Kaplan and Theresa M. Levine

Employers in New York City will be prohibited from asking applicants about their previous salary when an amendment to the New York City Human Rights Law (NYCHRL) goes into effect on October 31.

The amendment prohibits employers from asking about applicants’ wages, salaries, benefits, and other compensation history during the process of hiring or negotiating an employment contract. Also, the amendment prohibits employers from asking an applicant’s current or prior employer about wages and makes it unlawful for an employer to search publicly available records or reports to obtain an applicant’s salary history.

The purpose of the amendment is to combat the wage gap that’s seen as perpetuating lower wages for women and minorities.

Under the new law, employers that improperly inquire about or rely on a job applicant’s salary history may be subject to unlimited compensatory damages (including back and front pay), unlimited punitive damages, and attorneys’ fees. Further, the New York City Commission on Human Rights may impose civil penalties for violations and seek punitive damages for willful violations. Specifically, the commission may impose civil penalties of up to $125,000 for intentional violations and up to $250,000 for “intentional malicious violations.”

Although employers in New York City may not inquire into an applicant’s past salary under the NYCHRL amendment, they may continue to ask about “objective measures of productivity” such as revenue, sales, or production reports. Also, employers may ask whether a job candidate has certain salary “expectations” or “requirements.”

Applicants can always volunteer information about their salary history, provided it is done without “prompting” by management. While running background checks is still permissible, employers are cautioned that salary information obtained from such inquiries cannot be used in the hiring process.

For more information on the NYCHRL amendment, please see the May issue of New York Employment Law Letter.

Charles H. Kaplan is an attorney with Sills Cummis & Gross P.C. in New York City. He can be reached at ckaplan@sillscummis.com. Theresa M. Levine is an attorney with Coughlin & Gerhart, LLP, in Binghamton, New York. She can be reached at tlevine@cglawoffices.com.