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Don’t ask: Salary history inquiries are on the way out

Employment Law - For Employers

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New York City employers must prepare to give up a longtime staple of hiring

A time-honored tradition in recruitment and hiring will change this fall in New York City. Starting Oct. 31, under an amendment to the city’s Human Rights Law, New York City employers may no longer ask job applicants about their salary history.

The change also bans employers from researching applicants’ salary history, such as by asking former employers or searching public records. In addition, the new law prohibits them from considering salary history when setting or negotiating applicants’ pay.

There are some notable exceptions. Internal applicants are not covered by the new law. In addition, employers may use salary information that is volunteered by applicants. The law also permits employers to talk to applicants about their salary expectations.

Applicants who claim that an employer asked about or used their salary history to their disadvantage, without their having volunteered the information, will be alleging a type of discrimination. As employers may already be aware, the city’s discrimination protections are some of the strongest around. Enforcement of the new law will be available under two potential paths. Applicants may assert their claims in private litigation, and in some cases the New York City Commission on Human Rights may bring its own enforcement actions.

Proponents of the new law argue that it is a necessary measure in an ongoing fight against pay disparity between men and women. Opponents argue that the law unnecessarily inhibits a free-market exchange between employer and employee in salary negotiations.

Regardless of which side of the issue one takes, New York City employers will need to take action before the law takes effect, beginning with revising their employment applications to remove all salary history questions. Interview scripts should be revised similarly. Further, anyone involved in the process of recruiting, interviewing and hiring candidates should be told about the new law’s requirements.

Employers should document when employees volunteer salary information. If employers ask about salary expectations, they should do so in writing, potentially at the application stage, to hedge against later claims that the employer improperly requested salary history information.

Employers with questions about how to make changes to their recruitment, interviewing and hiring practices should talk to an experienced employment attorney.

Kevin Shehan, a labor and employment attorney, is a senior counsel at law firm Tully Rinckey’s Manhattan office.

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