Salary Ban

NYC Salary History Ban Takes Effect October 31, 2017

How much did you earn in your last job?”  That question– often posed by prospective employers during the hiring process–is now illegal in New York City.

What’s New

Starting October 31, 2017,  all New York City private and public employers (regardless of size) are prohibited from:
a) inquiring about the salary history of a job applicant or
b) relying on the salary history of a job applicant in determining the salary, benefits or other compensation during the hiring process, under an amendment to New York City’s Human Rights Law.

This prohibition includes inquiries in advertisements/postings, interviews, and/or applications, and searching public records to find out about an applicant’s current or prior salary or benefits history.  The law applies to most applicants for positions for full-time or part-time employment, internships, and to independent contractors without their own employees.

Headhunters who qualify as employers, employment agencies, or agents of an employer, or who aid and abet a violation of the NYC Human Rights Law, may also be liable under the law.

Reason for the Law

Proponents of the law argued that employers’ reliance on salary history has perpetuated the gender pay gap where women continue to be paid less than their male counterparts for doing the same job.  The law was enacted to “disrupt the cycle of wage inequality for women and people of color” and “encourage employers to set compensation based on qualifications,” rather than salary history.

Who is Not Protected

The law does not apply to applicants for internal transfer or promotion with their current employer or applicants for public sector jobs where salary is governed by a collective bargaining agreement.

What Inquiries May an Employer Make

According to NYC Commission on Human Rights’ (NYCCHR) FAQ regarding the Salary History Ban, employers may:

  • inquire about an applicant’s “expectations” for salary, benefits, bonus or commission structure, without inquiring about salary history;
  • state the anticipated salary, salary range, bonus, and benefits for a position;
  • ask about objective indicators of an applicant’s work productivity in her/his current or past jobs, such as revenue, sales, production reports, profits generated, or books of business;
  • inquire of an applicant’s current or former employers or search online to verify non-salary information, such as work history, responsibilities, or achievements. However, if this results in the accidental discovery of current or prior earnings or benefits, the employer cannot rely on this information in making salary or benefits decisions;
  • make inquiries about salary history that are authorized or required by federal, state, or local law;
  • verify and consider current or prior earnings or benefits only if offered voluntarily and without prompting by the applicant during the interview process.

The NYCCHR FAQ on the salary history ban recommends, with respect to headhunters that: “To protect against liability, headhunters should obtain written confirmation from job candidates that they consent to the disclosure of their salary history.”  This recommendation seems problematic, however, as an “end run” around the prohibition against inquiring about salary history, and employers should be careful of such an approach that may be challenged in court as violative of the law’s intent.

Noteworthy
  • Independent contractors without their own employees also are protected by this salary history ban.
  • Intentionally “aiding and abetting” a violation of the law is also a separate violation so former employers offering salary information about a former employee to an inquiring prospective employer, “headhunters” and recruiting agencies also need to be wary.
  • The NYCCHR FAQ asserts that, “if an unlawful discriminatory practice, including an inquiry about salary history, occurs during an in-person conversation in New York City, there will likely be jurisdiction because the impact of the unlawful discriminatory practice is felt in New York City. If an unlawful discriminatory practice occurs outside of New York City, there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City.”  The FAQ states that NYC residency alone is not enough to establish discriminatory impact.  What if the interview is conducted by Skype, telephone, or some manner other than in-person?  Must the employer, applicant or both be physically situated in NYC at the time of the “virtual” interview for there to be jurisdiction?  Is it possible that a court would find that an applicant residing in NYC but working outside NYC would be protected under this NYCHRL amendment if the unlawful salary inquiry were made in NYC?
NYC Joins the Salary History “Ban-dwagon”

The NYC salary history ban follows similar bans in other jurisdictions like Massachusetts, Philadelphia, Pennsylvania,[1] New Orleans, Louisiana, Puerto Rico, and mostly recently, California.

Penalties for Non-Compliance
  • The New York City Commission on Human Rights is charged with enforcing the law, and can impose civil penalties ranging from $125,000 to $250,000, and  mandatory training and posting for violators.
  • Complainants may sue in court alleging a violation of  New York City’s Human Rights Law, where they may get damages, attorneys’ fees, and costs.
What Employers Should Do Now

In light of these legal developments, organizations may want to:

  • ensure that employment applications and other hiring materials do not ask for prior salary history;
  • ensure third-party background checks will not yield prohibited information about salary history;
  • inform and train hiring managers, human resources, recruiters, headhunters, and others involved in the hiring process on the new legal requirements;
  • consider reviewing various resources and market-rate compensation surveys for the positions at issue together with an applicant’s qualifications, skill and value to the organization to determine appropriate compensation. (Nonprofits may already be considering such factors in determining executive compensation); and
  • finally, remember to comply with recent NYC laws prohibiting credit history inquiries and pre-offer criminal background check inquiries, as applicable.

Employers can learn more about this new law at New York City’s Salary History Ban FAQs: http://www1.nyc.gov/site/cchr/media/salary-history-frequently-asked-questions.page.

For assistance with training hiring managers on the new law, employment law audits of your employment practices and policies, and legal review of your documentation and hiring practices, please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law practice, at 212-889-0575, lisa@perlmanandperlman.com.

 

[1] The Philadelphia ban is currently being challenged in court.

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Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

A.B. Data
AB InBev Foundation
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
Association of Fundraising Professionals
Avalon Consulting
Baton Rouge Area Foundation
Black Lives Matter Global Network Foundation
Bleeding Blue for Good Fund
Bradley Cooper’s One Family Foundation
BrightFocus Foundation
Brooks Brothers
Chadwick Boseman Foundation for the Arts
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Charity Defense Council
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Marts & Lundy
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The Little Market
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United States Equestrian Team Foundation
United Way Worldwide
University of Connecticut
University of Virginia
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A.B. Data
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
American Rivers
Association of Fundraising Professionals
Baton Rouge Area Foundation
BrightFocus Foundation
Burger King McLamore Foundation
Cancer Care
Carnegie East House and James Lenox House Association
Center for Car Donations
Changing Our World
Charity Defense Council
Christian Appalachian Project
Coca-Cola Scholars Foundation
Convoy of Hope
Cornell University
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Feed The Children
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Helen Keller Services
Hope for New York
Human Rights Watch
Humane Society of US
Indiegogo
International Campaign for Tibet
International Crisis Group
International Justice Mission
Japanese American National Museum
Johns Hopkins University
Lane Bryant Charities
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation
Mattel
Meyer Partners, LLC
Milken Institute
National Breast Cancer Coalition
National Marrow Donor Program
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Obama Foundation
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rock and Roll Hall of Fame and Museum
Rockefeller Philanthropy Advisors
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Steinhardt Foundation
Subaru of America
United States Equestrian Team Foundation
University of Montana Foundation
University of Nevada, Las Vegas Foundation
Whitney Museum of American Art
World ORT
World Wildlife Fund
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YWCA USA

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Our attorneys’ recent contributions to the media and nonprofit sector publications.

news & events

Check out our attorneys’ recent contributions to the media and industry publications.

Secure Your Data – Seriously, AFP New York Chapter News
As Jon Dartley, a data privacy and security attorney at Perlman and Perlman says, “It is vital to have the appropriate legal terms in the contract to protect your interests.”  Find out what your liability limit is.  Have it in writing who bears the responsibility and cost of a data breach.  And, have the vendor agree on a specific timeframe within which they need to advise you of a data breach.

Warning: Don’t Cut Legal Corners When Mixing Social And Business Impact,  Forbes
Particularly striking is that (Karen) Wu believes this is the “first multi-state regulatory activity involving cause marketing in almost two decades.”

Is stealing, then giving back, OK?
Cliff Perlman lends his advice on theft within a nonprofit.

Buyer Beware: Negotiating Terms in Technology Agreements
Jon Dartley provides tips on negotiating contracts with technology vendors.

Four Ways Charitable Giving Could Change with a Tax Overhaul
Cliff Perlman remarks on the possible threat of a change to charitable deduction.

How To Deal With Residual Data, Nonprofit Times
Jon Dartley’s advice on addressing “data exhaust”.

Secure Your Data – Seriously, AFP New York Chapter News
As Jon Dartley, a data privacy and security attorney at Perlman and Perlman says, “It is vital to have the appropriate legal terms in the contract to protect your interests.”  Find out what your liability limit is.  Have it in writing who bears the responsibility and cost of a data breach.  And, have the vendor agree on a specific timeframe within which they need to advise you of a data breach.

Warning: Don’t Cut Legal Corners When Mixing Social And Business Impact,  Forbes
Particularly striking is that (Karen) Wu believes this is the “first multi-state regulatory activity involving cause marketing in almost two decades.”

Is stealing, then giving back, OK?
Cliff Perlman lends his advice on theft within a nonprofit.

Buyer Beware: Negotiating Terms in Technology Agreements
Jon Dartley provides tips on negotiating contracts with technology vendors.

Four Ways Charitable Giving Could Change with a Tax Overhaul
Cliff Perlman remarks on the possible threat of a change to charitable deduction.

How To Deal With Residual Data, Nonprofit Times
Jon Dartley’s advice on addressing “data exhaust”.

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silk lanterns

who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

A.B. Data
AB InBev Foundation
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
Association of Fundraising Professionals
Avalon Consulting
Baton Rouge Area Foundation
Black Lives Matter Global Network Foundation
Bleeding Blue for Good Fund
Bradley Cooper’s One Family Foundation
BrightFocus Foundation
Brooks Brothers
Chadwick Boseman Foundation for the Arts
Changing Our World
Charity Defense Council
Christian Appalachian Project
Doctors of the World/ Medecins du Monde
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Estee Lauder Companies, Inc.
Feed The Children
Food For The Poor
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Hope for New York
International Campaign for Tibet
International Crisis Group
International Justice Mission
J. Crew Group
Johns Hopkins University
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation

Marts & Lundy
Meyer Partners, LLC
Milken Institute
NAACP Foundation
National Alliance on Mental Illness (NAMI)
National Marrow Donor Program
National Park Foundation
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
PopSockets
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rockefeller Philanthropy Advisors
Save the Children Federation
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Subaru of America
The Little Market
Touro University
United States Equestrian Team Foundation
United Way Worldwide
University of Connecticut
University of Virginia
Vote.org
Whitney Museum of American Art
World ORT
World Wildlife Fund
YWCA USA

A.B. Data
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
American Rivers
Association of Fundraising Professionals
Baton Rouge Area Foundation
BrightFocus Foundation
Burger King McLamore Foundation
Cancer Care
Carnegie East House and James Lenox House Association
Center for Car Donations
Changing Our World
Charity Defense Council
Christian Appalachian Project
Coca-Cola Scholars Foundation
Convoy of Hope
Cornell University
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Feed The Children
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Helen Keller Services
Hope for New York
Human Rights Watch
Humane Society of US
Indiegogo
International Campaign for Tibet
International Crisis Group
International Justice Mission
Japanese American National Museum
Johns Hopkins University
Lane Bryant Charities
LSU Foundation
Mattel
Meyer Partners, LLC
Milken Institute
National Breast Cancer Coalition
National Marrow Donor Program
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Obama Foundation
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rock and Roll Hall of Fame and Museum
Rockefeller Philanthropy Advisors
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Steinhardt Foundation
Subaru of America
United States Equestrian Team Foundation
University of Montana Foundation
University of Nevada, Las Vegas Foundation
Whitney Museum of American Art
World ORT
World Wildlife Fund
YMCA USA
YWCA of New York City
YWCA USA
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law

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