Over the few weeks, several jurisdictions have passed salary history bans impacting private employers. Included below are updates for New Jersey, Toledo, New York and Illinois which now join the ever-expanding list of cities and states that have addressed pay equity concerns.
Employers may consider salary history in determining the salary, benefits and other compensation for the applicant, and may also verify the salary history information if the applicant voluntarily provides the information. Employers may also request that the applicant provide them with a written authorization to confirm salary history information after an offer of employment including compensation is made to the applicant.
There are several exemptions under the law including, but not limited to, internal transfers or promotions, or any attempt to obtain or verify non-salary related information when performing a background check (provided the employer specify salary history information should not be disclosed). Finally, employers may include an inquiry regarding salary history on an employment application provided there is a disclaimer that an individual working in New Jersey (in whole or substantial part) should not answer the question.
Under the Ordinance, it is an unlawful discriminatory practice for employers to: (i) inquire about salary history of job applicants, (ii) screen applicants based on salary/compensation information including requiring certain minimum or maximum criteria, (iii) rely on salary history when determining whether to extend an offer or what compensation to offer and (iv) refuse to hire an applicant for not disclosing salary history information.
Employers may engage in discussions regarding compensation expectations and are required to provide a pay scale for a position an applicant has received a conditional offer for upon reasonable request. Employers should review the Ordinance for a list of exemptions.
Under the statewide law, employers may not:
Under the amended law, employers and employment agencies may not: (i) screen job applicants based on current or prior wage or salary history, or require wage or salary history information meet a certain minimum or maximum criteria, (ii) request or require wage or salary history information as a condition of being considered for employment or (iii) request or require that an applicant disclose wage or salary history information as a condition of employment. Employers are also prohibited from seeking wage or salary information from any current or former employee (with limited exceptions).
Further, employers may not require an employee to sign a contract or waiver that would prohibit the individual from discussing or disclosing wage or compensation information. Employers may however prohibit human resource or other professionals from discussing an individual’s compensation information without that individual’s written consent.
Employers may provide information regarding the wages, benefits or salary offered in relation to the position, and may also discuss with applicants their expectations with respect to salary or other compensation.
New Jersey
On July 25, New Jersey Lieutenant Governor Sheila Oliver signed A1094 into law which will take effect on January 1, 2020. Under the new law, employers are prohibited from screening a job applicant based on salary history or requiring the individual’s salary history meets certain minimum or maximum criteria.Employers may consider salary history in determining the salary, benefits and other compensation for the applicant, and may also verify the salary history information if the applicant voluntarily provides the information. Employers may also request that the applicant provide them with a written authorization to confirm salary history information after an offer of employment including compensation is made to the applicant.
There are several exemptions under the law including, but not limited to, internal transfers or promotions, or any attempt to obtain or verify non-salary related information when performing a background check (provided the employer specify salary history information should not be disclosed). Finally, employers may include an inquiry regarding salary history on an employment application provided there is a disclaimer that an individual working in New Jersey (in whole or substantial part) should not answer the question.
Toledo, Ohio
Toledo became the second city in Ohio (following Cincinnati) to enact pay equity legislation that addresses salary history information. The new Ordinance applies to employers with fifteen or more paid employees within the city of Toledo and will take effect on July 4, 2020.Under the Ordinance, it is an unlawful discriminatory practice for employers to: (i) inquire about salary history of job applicants, (ii) screen applicants based on salary/compensation information including requiring certain minimum or maximum criteria, (iii) rely on salary history when determining whether to extend an offer or what compensation to offer and (iv) refuse to hire an applicant for not disclosing salary history information.
Employers may engage in discussions regarding compensation expectations and are required to provide a pay scale for a position an applicant has received a conditional offer for upon reasonable request. Employers should review the Ordinance for a list of exemptions.
New York
Several cities and counties within New York have already enacted salary history bans. Governor Andrew Cuomo signed S6549 into law bringing a new statewide standard for employers to consider. The statewide law goes into effect on January 6, 2020. However, this statewide law does not preempt any of the existing legislation on a local level. Importantly as well, the state law applies to both prospective and current employees.Under the statewide law, employers may not:
- Rely on wage or salary history in determining whether or not to extend an offer or to determine wages to offer.
- Seek, request or require (whether orally or in writing) the wage or salary history from an applicant or current employee as a condition to be interviewed or otherwise considered for an employment offer.
- Seek, request or require (whether orally or in writing) the wage or salary history of an applicant or current employee from an employer or agent of the applicant or employee’s employer.
- Refuse to interview, hire, promote or otherwise employ, or retaliate against, an applicant or employee based upon prior wage or salary history.
- Refuse to interview, hire, promote or otherwise employ, or retaliate against, an applicant or employee who did not provide salary history information in accordance with the law.
- Refuse to interview, hire, promote or otherwise employ, or retaliate against, an applicant or employee who filed a complaint alleging a violation of this law.
Illinois
Illinois Governor J.B. Pritzker recently signed HB834 into law which will take effect on September 29, 2019. HB834 amends the Equal Pay Act of 2003 in several ways including with respect to salary history information.Under the amended law, employers and employment agencies may not: (i) screen job applicants based on current or prior wage or salary history, or require wage or salary history information meet a certain minimum or maximum criteria, (ii) request or require wage or salary history information as a condition of being considered for employment or (iii) request or require that an applicant disclose wage or salary history information as a condition of employment. Employers are also prohibited from seeking wage or salary information from any current or former employee (with limited exceptions).
Further, employers may not require an employee to sign a contract or waiver that would prohibit the individual from discussing or disclosing wage or compensation information. Employers may however prohibit human resource or other professionals from discussing an individual’s compensation information without that individual’s written consent.
Employers may provide information regarding the wages, benefits or salary offered in relation to the position, and may also discuss with applicants their expectations with respect to salary or other compensation.