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New York State Issues Guidance on Salary History Ban

On January 6, 2020, New York State's salary history ban became effective. Under this new law, employers may not ask a job applicant, or anyone else, for any information concerning an applicant's salary history. Moreover, salary history may not be used to decide whether to interview an applicant, whether to offer the applicant the job, or what salary to offer.

In order to help employers bring their practices into compliance with the new law, New York State released a Q&A style guidance clarifying several important aspects of the law. First, the guidance helpfully defines the term "applicant" as "someone who took an affirmative step to seek employment with the employer and who is not currently employed with that employer," including part-time, seasonal, and temporary workers, regardless of immigration status. If an applicant is currently employed by the employer, the employer may consider salary history information already in its possession, however, the employer still may not ask about the applicant's previous pay from other jobs.

The guidance also clarifies that an applicant may voluntarily disclose salary information to a prospective employer, so long as the disclosure comes without any prompting from the employer. In the event an applicant does voluntarily disclose salary information, the employer may consider that information when deciding what salary to offer the applicant. Note, though, that employers may not attempt to pose an “optional” salary history question on a job application to circumvent the law.

All New York employers should review their job applications and onboarding processes, and train hiring personnel, to ensure compliance. As the guidance suggests, employers must eliminate questions about past salary from all job applications and even consider proactively stating in job postings that the company does not seek salary history information from job applicants.

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Mary Gambardella Litigation lawyer Wiggin Dana
Partner

Mary brings decades of experience in helping clients comply with ever-changing labor laws and regulations, as well as in managing employment challenges such as sensitive terminations, sexual harassment, reductions in workforce, discrimination claims, and severance agreements. She is a proactive resource for clients seeking her counsel on a variety of human resource issues before they become a costly crisis, as well as a fierce advocate when crises arise.

Mary is Chair of the firm’s Labor, Employment and Benefits Department and regularly represents employers in...

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Lawrence Peikes Employment litigation lawyer Wiggin Dana
Partner

Larry represents the interests of management in all aspects of the employer-employee relationship and is particularly experienced in litigation defense. He has advocated for employers in a wide range of employment cases—before arbitrators, mediators, and government agencies as well as in state and federal courts. In a field where most attorneys rarely appear before a judge, let alone a jury, Larry has successfully tried cases on both the federal and state levels. Despite his extensive courtroom experience, Larry is first and foremost dedicated to finding the best, most pragmatic business solutions to personnel relations challenges, with an eye toward avoiding litigation.

Larry's practice encompasses the full range of employment law issues, including workplace discrimination, sexual and other forms of harassment, wrongful discharge, wage-and-hour compliance, non-competition agreements, trade secret protection, and contract negotiations. Larry represents employers in administrative proceedings before such agencies as the U.S. Equal Employment Opportunity Commission; the Connecticut Commission on Human Rights and Opportunities; the New York State Division of Human Rights and its New York City counterpart; the National Labor Relations Board; the U.S., Connecticut, and New York Departments of Labor; and other administrative bodies charged to enforce federal and state labor laws.

When litigation proves unavoidable, Larry and his team of seasoned employment lawyers have an enviable record of success, disposing of lawsuits on motions, at trial, and by way of advantageous settlements. 

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Amanda Brahm Employment Attorney Wiggin and Dana
Associate

Amanda is an Associate in Wiggin and Dana's New Haven office.

Before joining Wiggin and Dana, Amanda was an intern in the Data Privacy and Security Department at the Office of the Attorney General in Hartford, as well as a summer associate at Wiggin and Dana.

Amanda received her J.D. from Wake Forest University School of Law, where she served as the Senior Notes and Comments editor for the Wake Forest Journal of Business and Intellectual Property and received CALI Awards for Excellence in Conflicts of Law,...

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