Salary History Law: Frequently Asked Questions
For fact sheets for employers/HR or job applicants, visit the #SalaryIsHistoryNYC page.
[https://www1.nyc.gov/site/cchr/media/salary-history-frequently-asked-questions.page]
I. General scope of coverage under the Law
Who is protected under the Law?
Most applicants for jobs in New York City are protected, regardless of the size of the employer.
Which employers does the Law apply to?
The Law applies to employers of any size that are hiring job applicants in New York City.
Can you ask about salary history for a job outside of New York City or at an interview held outside of New York City?
If an unlawful discriminatory practice, including an inquiry about salary history, occurs during an in-person conversation in New York City, there will likely be jurisdiction because the impact of the unlawful discriminatory practice is felt in New York City. If an unlawful discriminatory practice occurs outside of New York City, there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City. Entities should apply the same jurisdictional analysis in this context that they would involving other areas of the City Human Rights Law (e.g., in the employment context, residency in New York City alone, without more, is generally not enough to establish impact in New York City).
Does the Law apply to applicants for internal transfer or promotion with their current employer?
No.
Does the Law apply to applicants for public sector jobs for which salary is governed by a collective bargaining agreement?
No.
Does the Law apply to people, including former employers, who disclose information about salary history to the hiring employer?
Generally, no. The Law governs inquiries and searches for records about an applicant’s salary history by the hiring employer; however, others can also be held liable if they intentionally aid and abet a violation of the Law.
What is the effective date of the Law?
Salary history protections under the NYC Human Rights Law are effective October 31, 2017. They are not retroactive.
II. What employers can and cannot do to learn about applicants’ salary expectations
What information can a job application request with respect to salary expectations?
A job application can request information about applicants’ compensation expectations or demands, but may not include a request for information about applicants’ salary history, even if the employer makes clear that a response is voluntary. In addition, an employer who uses a boilerplate application that requests salary history information will not avoid liability simply by adding a disclaimer that individuals in New York City or applying for jobs located in New York City need not answer the question.
May an employer seek information about salary history from a source other than the applicant?
Employers may not, for the purpose of learning an applicant’s salary history, ask people from the applicant’s current or former place of employment or search public records for information about the applicant’s salary history. If an employer accidentally uncovers information about an applicant’s salary history by, for example, searching publicly available information about the applicant, the employer may not rely on that information in determining what to offer the applicant in salary, benefits, and other compensation.
Will an employer be liable if it unintentionally stumbles on information about an applicant’s salary history?
No. However, the employer may not rely on the salary history information in determining what to offer the applicant in salary, benefits, and other compensation.
What if applicants volunteer information about their salary history?
If a job applicant voluntarily and without prompting discloses their salary history, the employer may then consider and verify about the applicant’s salary history, verify the applicant’s representations about salary history, and rely on information about the applicant’s salary history in determining what to offer the applicant in salary, benefits, and other compensation.
What does it mean for an applicant’s voluntary disclosure of salary history to be “without prompting”?
A disclosure of salary history is “without prompting” if the average job applicant would not think that the employer encouraged the disclosure based on the overall context and the employer’s words or actions.
Can employers run background checks that include information about applicants’ salary history?
Employers should be mindful that the NYC Human Rights Law places limitations on when and under what circumstances employers may initiate background checks related to criminal history and credit history. In circumstances where an employer is legally permitted to perform a background check before a conditional offer has been made, or decides to run a background check after a conditional offer is made, the Commission recommends that employers specify to reporting agencies that information about salary history be excluded from the report. Inquiries into salary history violate the Law regardless of whether such inquiries are made before or after a conditional offer unless they are made to verify representations offered by an applicant who disclosed their salary history voluntarily and without prompting. If an employer accidentally uncovers information about an applicant’s salary history, the employer may not rely on that information in determining what to offer the applicant in salary, benefits, and other compensation.
May employers request a prospective employee’s W-2 to verify representations made about salary history?
Employers may only ask for a W-2 to verify representations made about salary history if the applicant, voluntarily and without prompting, offers information about salary history. However, in all other circumstances, even after a conditional offer is made and compensation levels are set, an employer cannot ask for a W-2 unless otherwise required by local, state, or federal law.
If an employer is considering hiring a temporary employee placed through a temp agency to a permanent position, can the employer consider the value of what it is paying the temp agency in calculating its offer to the temporary employee?
Yes, the employer can consider the value of what it is paying the temp agency to determine a salary offer for the temporary employee.
Can an employer consider the salary history of a temporary employee placed through a temp agency in determining compensation for an offer of permanent employment in the same position or a comparable position?
If the temp agency and employer are joint employers, the law would not apply, since the hire would be akin to an internal transfer. If, however, the employer and temp agency are not joint employers, the law would apply. In this case, while the employer can use the amount it is being charged by the temp agency for the role in order to determine the value of its offer of permanent employment, it cannot ask what the temporary employee is being paid by the temp agency.
Can an employer request W-2s or another form of documentation of employment to confirm employment history if they instruct the applicant to redact salary history information?
Yes, if an employer requests W-2s or other documents or letters to confirm prior employment, they may do so, but must instruct the applicant to redact all salary history information that may be contained on such documents.
May employers use job applications that request salary history but that instruct applicants not to complete that portion of the application for positions that are governed by the New York City Human Rights Law?
No. Employers may not use job applications, such as those that are intended to be used across multiple jurisdictions, which request information about salary history, even if they include disclaimers or other language indicating that applicants should not respond to such questions when applying for a position that is in New York City or governed by the New York City Human Rights Law.
Read moreNYC Salary History Law — Frequently Asked Questions
ember 1, 2022
ember 1, 2022