January 23, 2019

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Westchester County, New York Enacts Salary History Inquiry Law

The Westchester County, NY Board of Legislators has unanimously enacted legislation that will prohibit employers and their agents from relying on, requiring, requesting, or seeking information about a prospective employee’s wage history during the hiring process. The Wage History Anti-Discrimination Law (the “Law”) will become effective on July 9, 2018.

The Law amends the Westchester County Human Rights Law (“WCHRL”), which applies to employers with four or more employees.

The Law provides that it is an unfair discriminatory practice for an employer, labor organization, employment agency or licensing agency (or an employee or agent of same) to:

  • rely on a prospective employee’s current or prior wage history in determining the wages for the prospective employee, unless such information is “voluntarily provided by the prospective employee to support a wage higher than the one offered by the employer”;

  • request or require that a prospective employee disclose current or prior wage information as a condition of being interviewed, considered, or offered employment; and/or

  • seek from any current or former employer the prior wage information of a prospective employee.

An employer may, however, seek to confirm wage information from a current or former employer only after: (i) an employment offer with compensation has been made; (ii) the prospective employee responds to the offer by providing his or her prior wage information to support a wage higher than the one offered by the employer; and (iii) the employer has obtained written authorization from the prospective employee to confirm wage history from the current and/or former employer(s).

The Law further provides that employers may not refuse to hire an individual or retaliate against either a prospective or current employee based upon wage or salary history or because the individual has exercised his or her rights under the Law.

The new law will be enforced in accordance with the WCHRL, which grants the Westchester County Human Rights Commission authority to accept complaints and conduct hearings regarding alleged violations.

Notably, the Law provides that it will become null and void upon the enactment of either: (i) statewide legislation incorporating the same or substantially similar provisions as the Law; or (ii) state or federal regulations preempting the enforcement of such a law by the County of Westchester. This provision appears to acknowledge pending legislation before the New York State legislature that would restrict employers throughout the state from inquiring with job applicants about prior salary and/or using such information in making salary offers. New York Governor Andrew Cuomo recently endorsed the proposed legislation.

On the other hand, the state legislatures of both Michigan and Wisconsin have recently enacted legislation prohibiting local governments from regulating the information an employer or potential employer may request, require, or exclude on an application for employment or during the interview process from an employee or potential employee.

© 2019 Proskauer Rose LLP.


About this Author

Evandro Gigante, Labor Attorney, Proskauer Rose Law FIrm
Senior Counsel

Evandro Gigante is a Senior Counsel in the Labor & Employment Law Department. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation, and breach of contract. Evandro also counsels employers in connection with reductions in force and wage-and-hour issues, and advises clients on restrictive covenant issues, including, for example, confidentiality, non-compete, and non-solicit agreements. 

Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour and class and collective action litigation, and she is a frequent contributor to the Proskauer on Class and Collective Actions blog.

Maryssa Mataras, Proskauer Law Firm, Newark, Labor and Employment Litigation Attorney

Maryssa A. Mataras is an associate in the Labor & Employment Department. Maryssa assists clients in a broad spectrum of employment litigation and counseling matters. 

Prior to joining Proskauer, Maryssa served as a judicial law clerk to the Honorable Anne M. Patterson of the New Jersey Supreme Court.

While in law school, Maryssa was an executive board member of the Seton Hall Law Review and the President of the Employment Law Society. She was also the recipient of the Excellence in Constitutional Law and...