In recent years there has been a growing trend of equal pay legislation
seeking to eliminate discriminatory pay disparities in the workplace.
In August 2016, Massachusetts passed its new Pay Equity Law and became
the first state to prohibit employers from seeking the salary history
of prospective employees until after an offer of employment with compensation
has been extended. The new law also bans employers from contacting prospective
employees’ former employers for the purpose of obtaining their past
compensation. The bill was signed into law on August 1, 2016 by Massachusetts
Governor Charlie Baker and will take effect on January 1, 2018.
While Massachusetts was the first jurisdiction to pass “ban-the-box”
type legislation with respect to salary history, it likely will not be
the last. On August 16, 2016, a similar bill was introduced to the New
York City Council to amend the New York City Human Rights Law to make
it unlawful for an employer to inquire about the salary history of an
applicant directly or by searching publicly available records or reports.
Moreover, the proposed bill would prevent employers from relying on the
salary history of an applicant in making compensation decisions at any
stage during the hiring process unless the applicant unprompted and voluntarily
disclosed such compensation history.
Similar legislation has been proposed in New Jersey to prohibit employers
from seeking the salary history of prospective employees and California
has a bill (awaiting its governor’s signature or veto) that would
ban employers from using salary history as a justification for pay differences
between men and women performing substantially similar work. At the federal
level, Congress will soon be faced with proposed legislation on this issue.
Representative Eleanor Holmes Norton (D-D.C.) has stated that she will
introduce a bill with co-sponsors – Representatives Rosa DeLauro
(D-Conn.) and Jerrold Nadler (D-N.Y.) – that makes it unlawful for
employers to ask prospective employees about past compensation and prohibits
employers from using such salary history in making compensation decisions.
This salary history “ban-the-box” type legislation could very
well become the norm across jurisdictions in the U.S. Accordingly, should
such laws take effect, employers in those jurisdictions will need to remove
salary history questions from job applications and ensure interviewers
and hiring personnel avoid asking prospective employees compensation-related
questions during the hiring process.
For more information on the topic discussed, contact:
Joel A Klarreich | 212-508-6747 |
JAK@thsh.com |: @staffing_lawyer
Andrew W. Singer | 212-508-6723 |
firstname.lastname@example.org |: @employer_lawyer
Stacey A. Usiak | 212-702-3158 |
email@example.com |: @law4employers
Jason B. Klimpl | 212-508-7529 |
firstname.lastname@example.org |: @HR_Attorney
*A special thanks to
Andrew Yacyshyn for his contributions
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