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New York City Employers Prohibited from Obtaining Salary History

Personal and pivotal perspectives on timely topics, written by our professionals.

By Kelly Fantasia, PHR, SHRM-SCP

Starting on October 31, 2017, a new law will go into effect that prohibits employers in New York City from asking about a job candidate’s salary history during the interview and contract negotiation process.  A few other states and cities are also following suit as part of a movement to minimize the discrepancy that can arise between what men are paid versus women and minorities to perform the same jobs when potential employers are privy to a candidate’s self-reported current and prior salary history. 

While this restriction has been on the books in New York City for government employees for a year already, the new legislation will now extend to include private employers, as well. 

So what exactly is considered off limits when using these new ground rules?  Asking about a candidate’s current or previous salaries, benefits packages, and other forms of compensation all fall under the “forbidden” umbrella.  Regardless of the consideration stage for the candidate, as an interviewer in New York City, you’ll no longer be permitted to ask questions of the candidate or anyone associated with them to get at this information.  That means that, in addition to steering clear of asking questions about the candidate’s salary history in any conversation an HR or organization’s interviewing personnel has directly with that individual, the hiring organization is also forbidden from obtaining this information from public records, former or current employers, and employment agencies that are in the hiring mix.

If you’re an employer who has offices in New York City as well as another location, a good rule of thumb is to keep your interviewing materials consistent, regardless of location, so that you’re always erring on the side of caution.  You’ll want to update interview materials such as written lists of questions you typically ask in pre-screening phone calls and in person and background check documents, making sure to strip out all references to salary history.  Make sure you then circulate the revised documents to all parties involved in the interviewing process, including outside recruiters who may inadvertently send along salary history information to you. 

Your best bet is to stick to a line of questioning that asks the candidate what their salary expectation is and to pose the question in writing, preferably as part of the written application.  This covers your bases should the candidate misunderstand and think you’re asking for past or current salary information.  Also, by asking about salary expectations, both sides benefit as you can better determine whether or not the candidate is in the market for the job they’re responding to and is looking for a salary within the range that your position’s paying.  As an employer you’re perfectly within rights to discuss whether or not the expectations match the salary range the job pays. 

There are a few exceptions to the law which include things like being able to use salary history information 1) the candidate voluntarily offers during the interview (though you’ll want to document that conversation so you don’t get snagged later on), and 2) related to current employees who are moving from one position to another within their current organization.  In both these instances, you’re permitted to use salary history to inform your job’s compensation package. 

As the saying goes, forewarned is forearmed, so it’s best to stay current on any legislation surrounding interviewing and employment laws to ensure you’re always in compliance. 

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