New York State and New Jersey are poised to become the two most recent jurisdictions to adopt bans on inquiries about salary history.

New York. New York’s legislature recently passed a bill, which would bar New York employers from seeking wage or salary history information from an applicant, employee, or applicant’s former employer. Governor Andrew Cuomo is expected to sign the bill, and it will take effect 180 days thereafter. The statewide bill is similar to the ones already in effect in New York City and Suffolk, Westchester, and Albany counties.

If passed, the bill would prohibit employers from:

  1. Relying on the wage or salary history of an applicant in determining whether to offer employment to such individual or in determining the wages or salary for such individual;

  2. Orally or in writing, seeking, requesting, or requiring the wage or salary history from an applicant or current employee as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion;

  3. Orally or in writing, seeking, requesting, or requiring the wage or salary history of an applicant or current employee from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer;

  4. Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current employee based on prior wage or salary history;

  5. Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current employee because the individual did not provide wage or salary history in accordance with the law; or

  6. Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current or former employee because the individual filed a complaint with the State’s department of labor alleging a violation of the law.

Applicants and employees may voluntarily disclose or verify their salary history. An employer would also be able to confirm salary history if, at the time an offer of employment is made, the applicant or employee responds to the offer by providing prior salary history to support a salary higher than that offered by the employer.

The bill does not interfere or alter rights enjoyed by an applicant or employee under a collective bargaining agreement, nor does it affect any laws which require the disclosure of salary history information.

New Jersey. New Jersey has a similar bill pending in the legislature that would ban salary history inquiries. New Jersey’s bill would amend the Law Against Discrimination, N.J.S.A. 10:5-1, et seq., and prohibit any employer from:

  1. Screening a job applicant based on the applicant’s wage or salary history, including by requiring the applicant’s prior wages, salaries, or benefits satisfy any minimum or maximum criteria, or relying on the applicant’s salary in determining a salary amount for the applicant at any stage in the hiring process, including finalizing the employment contract;

  2. Inquiring, in writing or otherwise, about the salary history of a job applicant, including, but not limited to, the applicant’s compensation and benefits, except that the employer may seek the history if the prospective employee voluntarily, without employer coercion, provides the employer with a written authorization; and

  3. Taking reprisals against any employee for disclosing to any other employee or former employee of the employer information regarding the job title, occupational category, rate of compensation, the gender, race, ethnicity, military status, or national origin of the employee or any other employee or former employee of the employer.

Currently, the bill has been referred to the Labor Committee for review and is still pending.

The Bottom Line.

In light of the pending legislation, employers should ensure all employees involved in the interviewing and hiring process are aware of the new laws’ requirements. Employers should also review their employment applications to remove any questions regarding salary history.