May 26, 2020

EMPLOYERS BEWARE: Asking An Applicant the Wrong Question During an Interview May Cost You!

On July 25th, filling in for Governor Phil Murphy who was on vacation, acting Governor Sheila Oliver signed into law Assembly Bill 1094, effectively barring employers from asking applicants about past salary and benefit history. The law takes effect January 1, 2020.

In an attempt to eliminate gender based hiring practices, and to close the gender pay gap, New Jersey joins at least 18 other states and a number of large cities (including NYC, Chicago and Philadelphia) that prohibit such questions during the application stage of employment, and the list is growing. Applicants can certainly volunteer the information at which time an employer may follow up and even seek written confirmation, but an employer cannot (directly or indirectly) inquire about compensation history until after it is voluntarily provided by the applicant, or until after an offer of employment has been made to the applicant. It is important to note that A1094 does not prevent an employer from asking an applicant what his/her compensation requirements are, which assists employers in determining whether an applicant fits into the company’s budget and compensation scheme. However, asking an applicant about his/her desired salary requirements/expectations, is quite different than asking about one’s actual salary history.

A1094 does not just apply to salary/compensation related questions asked orally during live interviews. It also applies to salary-type questions in application forms, such as those that appear in print or online, as well as questions posed by third parties hired by employers, such as headhunters and recruiters. In order to comply with the new law, a review of all existing job applications in any form or medium must be performed to remove requests for salary history. Failure to comply with A1094 may result in fines ranging between $1,000 and $10,000 depending on the number of offenses (payable to the NJ Department of Labor). A violation may also serve as a basis for a civil lawsuit by the applicant who was asked the questions improperly under the NJ Law Against Discrimination based on gender discrimination and under the NJ Pay Equality Act.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved


About this Author

Jay S. Becker, Giordano Law Firm, Labor & Employment, Cannabis Law, Corporate Labor Relations Employment Law and Litigation

Jay, chair of the Labor and Employment Practice Area, devotes his practice to labor relations and employment law and litigation on behalf of management. His experience includes conducting trials, hearings, arbitration and mediation sessions; responding to state and federal administrative agency charges; collective bargaining; drafting employment-related corporate documents such as restrictive covenants, employee handbooks, employment agreements, various stock and compensation plans, and separation/severance agreements. He counsels employers on all employee relations issues including, but...