Can My Employer Ask About My Previous Salary?

 

For those living in the amazing New York City chasing their career dreams, the short answer to this question is no. For most other individuals living outside of the Big Apple, they may not be as lucky. New York City is one of the few places in the United States that has a specific law in place to protect individuals applying to jobs from being held back because of their previous job history.

It is a common question during interviews, in fact practically an inevitable question, “What did you make at your last job?” However, now that the New York City Administrative Code has added the new subdivision 25 to Section 8-107, employers in New York City may face potential lawsuits from applicants if they as such questions.

 

As of October 31, 2017, the New York City Salary History Law took effect, prohibiting all New York City employers, of any size, from asking about, relying on, or verifying a job applicant’s salary history during the hiring process in any form. This law is not retroactive. For instance, employers cannot ask about previous salary or benefits (such as a retirement plan) verbally in an interview or in writing on an application. Moreover, if an employer does a Google search on an applicant and leans—even invariantly—of the applicant’s prior salary or benefits and then relies on this information, this is unlawful conduct too.

 

Under the code, “Salary history” is broadly defined as an “applicant’s current or prior wage, benefits, or other compensation.” But it should be noted that there are a few exceptions and that this law does not apply to applicants for internal transfer or promotion within their current employer.

 

The new law specifically states:

  1. Employment; inquiries regarding salary history. (a) For purposes of this subdivision, “to inquire” means to communicate any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history, but does not include informing the applicant in writing or otherwise about the position’s proposed or anticipated salary or salary range. For purposes of this subdivision, “salary history” includes the applicant’s current or prior wage, benefits or other compensation. “Salary history” does not include any objective measure of the applicant’s productivity such as revenue, sales, or other production reports.

    (b) Except as otherwise provided in this subdivision, it is an unlawful discriminatory practice for an employer, employment agency, or employee or agent thereof:

    1. To inquire about the salary history of an applicant for employment; or

    2. To rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract.

    (c) Notwithstanding paragraph (b) of this subdivision, an employer, employment agency, or employee or agent thereof may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant’s resignation from their current employer.

    (d) Notwithstanding subparagraph 2 of paragraph (b) of this subdivision, where an applicant voluntarily and without prompting discloses salary history to an employer, employment agency, or employee or agent thereof, such employer, employment agency, or employee or agent thereof may consider salary history in determining salary, benefits and other compensation for such applicant, and may verify such applicant’s salary history.

    (e) This subdivision shall not apply to:

    (1) Any actions taken by an employer, employment agency, or employee or agent thereof pursuant to any federal, state or local law that specifically authorizes the disclosure or verification of salary history for employment purposes, or specifically requires knowledge of salary history to determine an employee’s compensation;

    (2) Applicants for internal transfer or promotion with their current employer;

    (3) Any attempt by an employer, employment agency, or employee or agent thereof, to verify an applicant’s disclosure of non-salary related information or conduct a background check, provided that if such verification or background check discloses the applicant’s salary history, such disclosure shall not be relied upon for purposes of determining the salary, benefits or other compensation of such applicant during the hiring process, including the negotiation of a contract; or

    (4) Public employee positions for which salary, benefits or other compensation are determined pursuant to procedures established by collective bargaining.

 

As it has been less than a year since the New York City Salary History Law became effective, it is extremely likely that many employers have updated their hiring procedures or retrained management in order to be compliant. Nevertheless, the law will still hold accountable employers unintentional violations.

 

If a New York City employer or company hiring a New York City resident fails to comply with the new law, the company or employer may face a civil penalty of up to $125,000 for an unintentional violation of the new law and of up to $250,000 for a violation if the City finds the act to be willful and malicious. Moreover, a potential applicant may also commence a lawsuit against the employer and, if successful, may be awarded, among other things, punitive damages, compensatory damages, and attorney’s fees.

 

If you feel like you have experienced unlawful discrimination during an interview or application process, contact the experienced New York City attorneys at the Derek Smith Law Group, PLLC. Our attorneys have years of experience litigating claims of sexual harassment and discrimination. Working together with our Philadelphia sexual harassment and discrimination attorneys, we have recovered millions on behalf of our clients who were discriminated against because of their gender or other protected classes. If you feel you have been discriminated against because of your gender, please give our attorneys a call, toll-free, at 877.469.5297, for your free consultation.