February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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New York City Council Approves Salary History Inquiry Ban

On Wednesday, April 5, 2017, the New York City Council approved an amendment to the New York City Human Rights Law (“NYCHRL”) prohibiting New York City employers from inquiring about a prospective employee’s salary history during the hiring process.  If signed by Mayor Bill DiBlasio – which is expected – the law will become effective sometime in October 2017, depending on the date the law is signed.

The law amends the NYC Human Rights Law to make it an unlawful discriminatory practice for an employer to (1) inquire about the salary history of an applicant for employment; or (2) to rely on the salary history of an applicant to determine the salary, benefits or other compensation of that applicant, during the hiring process, unless the applicant voluntarily and without prompting discloses his or her salary history to the employer.

The new law defines “inquire” to mean “to communicate any question or statement to an applicant, an applicant’s current or prior employer, … in writing or otherwise, to obtain an applicant’s salary history.”  Under the law, “inquire” also means to search publicly available records or reports to obtain an applicant’s salary history.  However, an employer is permitted to discuss with an applicant his or her expectations with respect to salary, benefits and other compensation and inform the applicant about the employer’s proposed or anticipated salary or salary range.

Certain employers and situations are excluded from the new law.  It does not apply to:  (1) actions taken by an employer that are specifically authorized by law to disclose or verify salary history for employment purposes; (2) applicants for internal transfer or promotion with their current employer; (3) any attempt by an employer to verify an applicant’s disclosure of non-salary related information or conduct a background check; or (4) public employee positions for which salary, benefits or other compensation are determined by collective bargaining.

The proposed amendment reflects the continued trend to eliminate any wage gap between men and women by prohibiting the use of salary history to determine an employee’s future salary.  Since this trend is likely to continue, employers should take care to review their hiring practices to ensure compliance with the anticipated new law going forward.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VII, Number 102

About this Author

Kevin J. Smith, Labor Law Lawyer, Sheppard Mullin Law Firm
Special Counsel

Kevin Smith is a special counsel in the Labor and Employment and Litigation Practice Groups in the firm's New York office.

Areas of Practice

Mr. Smith acts as trial and litigation counsel for all types of civil litigation, including employment, commercial, securities, and class action litigation before arbitral forums, state and federal courts, and local administrative and regulatory agencies.

In the labor and employment arena, Mr. Smith routinely represents management in discrimination, harassment, retaliation, whistleblower and compensation disputes...