On July 25, 2019, New Jersey became the most recent state to ban salary history inquiries by employers during the hiring process. Assembly Bill 1094, which will become effective on January 1, 2020, prohibits employers from screening job applicants based on the applicant’s salary history, including prior wages, salaries, and benefits. In addition, employers may not make employment decisions based on an applicant’s refusal to voluntarily provide salary history or require that an applicant’s salary history satisfy any minimum or maximum threshold to be considered for a job. There are exceptions to the law which permit employers to: consider salary history if the applicant voluntarily provides such information; verify salary history voluntarily provided by the applicant; and to confirm salary history once the employer has provided the applicant with an offer of employment that includes a compensation package.
Two weeks earlier, on July 10, 2019, New York Governor Cuomo signed into a law Assembly Bill A05308, which similarly prohibits employers from requiring, requesting and relying upon an applicant’s wage or salary history, or retaliating against an applicant or employee based on such history, for refusing to provide such history or for filing a complaint alleging a violation of this law. The law permits employers to confirm wage or salary history if, at the time an offer of employment with compensation is made, the applicant or current employee provides prior wage or salary information to support a wage or salary higher than offered by the employer. This law will take effect in January 2020 and applies to all public and private sector employers who do business in New York. On the same day, New York passed legislation that expands equal pay laws to prohibit unequal pay based on a protected class for all substantially similar work.
New Jersey and New York join over a dozen states and numerous localities, including New York City, Albany County, Suffolk County, and Westchester County, that restrict employers’ ability to inquiry about an applicant’s salary history as part of the hiring process. While Pennsylvania has not enacted a state-wide ban, Philadelphia was the first U.S. city to prohibit salary history inquiries in the application process. However, that legislation is on appeal in the Third Circuit Court of Appeals after Judge Mitchell S. Goldberg of the United States District Court for the Eastern District of Pennsylvania struck down certain provisions of the law as unconstitutional.
Employers in New Jersey and New York should review their job applications and hiring practices to confirm they comply with the new legislation. Cooper, LLC regularly advises clients on employment-related issues, including hiring and other employment practices, employee handbooks, non-compete and other restrictive covenants, among other issues.
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