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Salary History Bans Continue to Gain Momentum Across the Country (AL, IL, NJ, NY, MO, OH) (US)

The list of states and cities implementing prohibitions on employer salary history inquiries continues to grow.

On June 10, 2019, Alabama enacted the Clarke-Figures Equal Pay Act (“CFEPA”), the state’s first pay equity law. The CFEPA prohibits an employer from refusing to interview, hire, promote, or employ an applicant for employment, or retaliate against an applicant for employment because the applicant refuses to disclose their wage history. Wage history is defined in the CFEPA as “the wages paid to an applicant for employment by the applicant’s current or former employer.” The CFEPA took effect on September 1, 2019.

On July 31, 2019, Illinois’ governor signed into law House Bill 834, amending the Illinois Equal Pay Act of 2003. This law prohibits employers from screening job applicants based on their current or prior salary and from requesting or requiring that applicants disclose information about their salary history as a condition of being interviewed, considered for employment or offered employment. Employers are also prohibited from soliciting salary history information from an applicant’s former employer and from factoring salary history information into compensation or hiring decisions, even if an applicant provides the information voluntarily.

The law does allow employers to provide information about the wages, benefits, compensation, or salary offered in relation to a position and employers can discuss with an applicant their expectations with respect to wage or salary, benefits, and other compensation. The salary history law will go into effect on September 29, 2019.

Effective January 1, 2020, employers in New Jersey will be prohibited from requiring job applicants to disclose their salary history, including prior wages, salaries or benefits. On July 25, 2019, New Jersey’s acting governor signed into law Assembly Bill 1094, amending New Jersey’s Law Against Discrimination, and explicitly banning employers from screening job applicants based on the applicant’s salary history or requiring an applicant’s salary history satisfy any minimum or maximum criteria. Employers may verify salary history if an applicant voluntarily, without employer prompting or coercion, provides their salary history.

Effective January 6, 2020, employers in New York will be prohibited from requesting, requiring or relying on wage or salary history from applicants or current employees seeking employment, continued employment or promotion. On July 10, 2019, New York’s governor signed the Salary History Bill, broadening the state’s Equal Pay Act. Employers cannot require applicants to reveal salary history as a condition of consideration for a position, and cannot request salary history information from an applicant’s former employer. The law also prohibits refusal to hire or retaliation based on failure to provide wage or salary information. Applicants and employees may volunteer their salary history, and, if so, the employer may take it into consideration.

Employers with employees in New York City should note this new state law imposes additional restrictions than those of the New York City salary history ban.

Effective October 31, 2019, employers with six or more employees in Kansas City, Missouri will be prohibited from asking applicants for positions in Kansas City about their salary history. On May 23, 2019, the City Council passed Ordinance No. 190380, barring employers from inquiring about the salary history of an applicant, screening applicants based on their current or prior wages or benefits (including requiring that an applicant’s prior wages or benefits satisfy minimum or maximum criteria), relying on salary history in both hiring decisions or in determining compensation or benefits, or refusing to hire or otherwise disfavor or retaliate against an applicant who refused to provide their salary history to the employer.

Employers may ask, however, whether applicants have expectations regarding salary, benefits, and other compensation. The ordinance does not apply to “voluntary and unprompted” disclosures of salary information by applicants.

On July 5, 2019, Toledo, Ohio’s mayor signed into law the Pay Equity Act to Prohibit the Inquiry and Use of Salary History in Hiring Practices in the City of Toledo. This law prohibits employers in the City of Toledo that employ 15 or more employees within Toledo, from inquiring about, screening or relying upon the salary history of a job applicant in making an employment offer. While there is no violation if the applicant voluntarily, and without prompting, discloses their compensation, employers are barred from relying on an applicant’s salary history—even where voluntarily disclosed—in determining whether to offer the applicant employment or in determining the applicant’s compensation. The Act takes effect beginning July 4, 2020.

Employers in these locations should review and update their hiring practices and job applications to comply with these new laws.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Ariel Cohen Employment Lawyer
Associate

Ariel Cohen assists clients in a broad range of labor and employment matters. She researches and analyzes legal sources for drafting memoranda, pleadings and position statements related to employment law. Ariel also conducts legal research on employment law hot topics and case law and develops training programs that assist employers in maintaining compliance with frequently changing regulations.

While attending law school, Ariel gained experience in risk analysis and compliance, working in the legal division of the Federal Reserve Bank. She externed for Judge Catherine D. Perry at...

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