The Trend Continues: New York State Assembly Advances Bill Prohibiting Salary History Inquiries

On June 21, 2017, the New York State Assembly advanced Assembly Bill A2040C, which would restrict an employer’s ability to ask job applicants about their salary histories. If passed, the legislation would amend the New York Labor Law and apply to all New York State employers, including all public and private employers. The bill is currently before the New York State Senate. However, since the 2017 legislative session is now adjourned, it is unclear when the bill will be reviewed by the New York State Senate and whether any changes will be made. If a majority of the New York senators approve, the bill will be sent to the governor to sign. The bill would take effect 180 days after the governor signed it.

If passed in its current form, the law would prohibit employers from:

• relying on the salary history of a job applicant in determining the wages or salary of such applicant;
• seeking, requesting, or requiring the wage or salary history from a job applicant as a condition of continuing to be considered for an interview, employment, or a promotion; and
• refusing to interview, hire, promote, or otherwise employ a job applicant based on his or her prior wage or salary history.

Notably, under this bill, employers would be generally prohibited from seeking, requesting, or requiring the wage or salary history of a job applicant from the applicant’s current or former employer. Further, even though a job applicant may voluntarily disclose his or her salary history, “a prospective employer may confirm wage or salary history only if at the time an offer of employment with compensation is made, the prospective employee or current or former employee responds to the offer by providing prior wage information to support a wage higher than offered by the employer.”

The bill also contains strict anti-retaliation provisions. Employers are prohibited from retaliating against current or prospective employees for refusing to provide their wage or salary history or for filing a complaint with the New York State Department of Labor.

Employers that improperly inquire about or rely upon a job applicant’s salary history may be subject to compensatory damages, injunctive relief, and reasonable attorneys’ fees in litigation brought by an aggrieved individual. Individuals will be permitted to seek enforcement of this law and bring a civil action on behalf of all similarly situated persons. In addition, the New York State Department of Labor may, on its own investigation, impose a civil penalty of up to $1,000 for the first violation, up to $2,000 for a second violation, and up to $3,000 for each subsequent violation.

This law will require the New York State Department of Labor to conduct a public awareness outreach campaign to educate employers around the state of the new law.

New York City has already passed a similar ordinance, which is set to take effect as of October 31, 2017.

Ogletree Deakins will continue to monitor developments on this legislation and post updates to the firm’s blog as additional activity takes place.