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NYC Bans Private Employers From Asking Applicants: “How Much Money Do You Make?”

By Stephanie D. Delatorre

On May 4, 2017, Mayor de Blasio signed a bill passed by the New York City Council that prohibits private employers from asking applicants how much money they make or otherwise making salary history inquiries. The legislation, which will go into effect on October 31, 2017, amends the New York City Human Rights Law by adding a provision that makes it an “unlawful discriminatory practice” for an employer to make a salary inquiry of the applicant. Employers may not ask the applicant, the applicant’s current or former employer, or even someone the employee works with about the applicant’s current wages, benefits, or bonus compensation. 

However, if an applicant provides their salary history “voluntarily and without prompting,” then this information can be used lawfully by the employer. The legislation leaves the terms “without prompting” undefined and begs the question as to whether voluntary waivers would violate this law. The legislation does, however, explicitly permit the employer and applicant to discuss the salary offered, including any deferred compensation that the applicant would forfeit if they left their current employer.

Following the lead of Massachusetts and Philadelphia, New York City will be the third jurisdiction to enact legislation banning private employers from making prior-salary inquiries. Other states, including Illinois, Maine, Maryland, New Jersey, Pennsylvania, and Rhode Island, are considering similar measures; however, none have passed to date. Massachusetts’ state law will take effect on July 1, 2018. The Philadelphia ordinance has temporarily stayed in litigation filed by the Chamber of Commerce of Greater Philadelphia. Private employers will need to stay alert and assess whether to modify their employment applications and interview practices as this area continues to develop.