Westchester County, New York, Joins Albany County and New York City in Prohibiting Salary History Inquiries

On April 10, 2018, Westchester Country Executive George Latimer signed into law the Wage History Anti-Discrimination Law, which was adopted by a unanimous vote of the Westchester County Board of Legislators a day earlier. The new law will take effect 90 days following its adoption.

Applicability

The law applies to employers, labor organizations, employment agencies, licensing agencies, and the employees and agents of these entities. 

Unlawful Conduct

The law makes it unlawful to:

• rely on a prospective employee’s wage history in determining his or her wages;
• request or require disclosure of a prospective employee’s wage history as a condition of being interviewed, as a condition of being considered for an offer of employment, or as a condition of employment; or
• refuse to hire or otherwise retaliate against an employee or prospective employee because he or she opposed an act or practice prohibited by the law.

Permissible Inquiries

Notwithstanding the general prohibitions, the law allows an employer to consider wage history when an individual voluntarily provides that information to support a higher wage than offered by the employer. If a prospective employee provides prior wage information to support a higher wage after receiving an offer of employment that specifies compensation, the employer may confirm the prospective employee’s prior wages after he or she provides written authorization for such an inquiry.

How Can Employers Prepare? 

To prepare for the implementation of this law, Westchester employers may consider the following measures:

• Reviewing printed and online application forms to ensure that they do not seek or require disclosure of salary history information
• Providing appropriate guidance to employees and third parties formally or informally involved in the hiring process about their obligations under the new law
• Updating existing anti-retaliation policies, as well as other applicable policies, to incorporate the provisions of this law
• Developing procedures to document the circumstances of receipt and consideration of salary history in instances permitted by the law

Related Developments

In banning salary history inquiries and reliance upon salary history to set the salaries of prospective employees, Westchester Country joins Albany County and New York City, which enacted laws containing similar prohibitions in 2017. 

In addition, Governor Cuomo proposed legislation that would prohibit employers and employment agencies from relying upon or inquiring about the salary history of an applicant to determine whether to offer employment to that individual or to determine the salary offered to the applicant. The proposed law would not prohibit employers from discussing an applicant’s expectations with respect to salary, benefits, or other compensation. It also would not prohibit an employer from considering or relying on salary history information if an applicant voluntarily and without prompting disclosed his or her salary history to a prospective employer. The New York State Assembly had advanced a bill prohibiting salary history inquiries in 2017, but the measure was not acted upon by the New York State Senate before adjournment of the 2017 legislative session. It therefore seems possible that New York eventually will join California, Delaware, Massachusetts, Oregon, and Puerto Rico, which also have enacted statewide or territory-wide prohibitions on salary history inquiries.

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