Can a New York Employer Ask about Your Wage and Salary History?
No. A recently enacted New York State law prohibits employers from asking job applicants for wage or salary history as a requirement for a job interview, job application or job offer and prohibits an employer from relying on wage or salary history in determining whether to offer employment or in deciding on what wage or salary to offer. It also prohibits an employer from refusing to interview, hire, promote, otherwise employ or from retaliating against an applicant or current employee based on prior wage or salary history or the refusal to provide such information. New York Labor Law § 194-a.
Under the law, an applicant is someone who is seeking employment with an employer, including part-time, seasonal and temporary workers. The law protects applicants regardless of their immigration status. Note, however, that the law does not apply to independent contractors, unless they are working through an employment agency (but a similar New York City law might afford some protection to independent contractors working in New York City). An employer is defined as an individual; a business of any size, including public corporations and private companies; and all public entities including New York State, New York City and public authorities.
In contrast to a preexisting New York City law banning salary history inquiries, the New York State law applies to current employees, as well as job applicants. An employer cannot request prior salary history information from current employees as a condition of being considered for a promotion. But the employer can consider information it already possesses such as the employee’s current salary or benefits. So an employer may use an employee’s current salary to calculate a raise but cannot ask the employee about wages or salary from other jobs.
An employer is permitted to ask an applicant for their salary expectations for the position, rather than asking how much the applicant earned in the past. Also, the law does not prohibit an applicant or current employee from voluntarily providing wage or salary history, as long as the provision of such information is not the result of prompting by the employer.
This law is intended as a way to address pay equity and close the salary gap. If an applicant or employee believes an employer has violated this law, the law provides a private right of action, meaning the applicant or employee can bring a civil court action against the employer. Courts may award injunctive relief as well as reasonable attorneys’ fees to an individual who is successful. An individual may also contact the New York Department of Labor, Division of Labor Standards to report employers who act in violation of this law.