Salary History Law Trend Continuing as 2018 Draws to a Close
Author: David B. Weisenfeld, XpertHR Legal Editor
December 7, 2018
Suffolk County, New York has become the latest locality to enact a law banning employers from asking job applicants about their salary history or relying on their salary history at any stage in the hiring process. The salary history inquiry ban takes effect June 30, 2019, and also extends to benefits.
The new measure is an amendment to Suffolk County's Human Rights Law, which covers employers with four or more employees. In addition, the law applies to employment agencies.
The county legislature found that women in Suffolk County earn 78.1% of what their male counterparts earn, compared to the statewide percentage of nearly 87%. It also found significant disparities across racial and ethnic groups, with African-American or black women earning 64.4% of what white male applicants earn, and Latino or Hispanic women earning 55.3%, and that the wage gap "pervades all industries."
While New York state has yet to enact a salary history inquiry ban, Suffolk County joins an increasing number of highly-populated jurisdictions in the Empire State that have enacted salary history, including:
The trend goes well beyond New York's borders. Effective January 1, 2019, Connecticut, Hawaii and Oregon will have new salary history laws restricting employers.
Under the Connecticut measure, an employer may not inquire or direct a third party to inquire about a prospective employee's wage and salary history. In addition, the law subjects employers to potential lawsuits. Thus, any employer that violates it may be subject to compensatory damages, attorney fees and costs.
In Hawaii, a similar law will ban employers from relying on an applicant's salary history during the hiring process in determining salary, benefits or other compensation, including while negotiating an employment contract. The law also will make it illegal to penalize employees for disclosing or discussing their wages with colleagues.
Meanwhile, Oregon employers also are facing new salary history inquiry prohibitions in 2019, though there are some safeguards. For instance, an employer may still consider a current employee's compensation during a transfer, move or hire of the employer to a new position with the same employer.
Oregon employers also have a bit of a "grace period," as individuals will not have the right to file a lawsuit against an employer that unlawfully seeks their salary history information until January 1, 2024.
Other states with salary history question bans in place include:
- Massachusetts; and