New Jersey Employers
As of January 25, 2020, private employers in New Jersey will no longer be able to require job applicants to provide information about wage and salary history prior to making an employment offer. Assembly Bill 1094 was signed into law by acting Governor Sheila Oliver on July 25, 2019. Last year, Governor Murphy issued an executive order barring New Jersey state entities from similar inquiries.
The new legislation sets different standards for actions taken prior to and following an offer of employment:
- Pre-offer: An employer may not consider salary history in determining salary, benefits and other compensation or verify the applicant’s salary history, unless the applicant voluntarily provides the salary history, without any employer prompting or coercion. Further, an employer may not require that the applicant’s salary history satisfy any minimum or maximum criteria or consider an applicant’s refusal to volunteer compensation information in any employment decisions.
- Post-offer: Where the offer includes explanation of the overall compensation package, an employer may ask the applicant to provide a written authorization to confirm salary history, including compensation and benefits.
When conducting a background check on a job applicant to verify non-salary related information, the employer must specify that salary history information should not be disclosed and must not retain or consider any such information inadvertently obtained during a background check.
The prohibition on salary history inquiry
does not apply
- applications for internal transfer or promotion;
- use of knowledge obtained during prior employment with the same employer;
- actions required by federal law or regulation, or
- inquiries regarding an applicant’s previous experience with incentive and commission plans (excluding the amount of earnings under those plans) where the employment opening for which the applicant is being considered includes an incentive or commission component.
New York Employers
As of January 6, 2020, both private and public employers in New York State will be prohibited from requesting wage or salary history from an applicant or current employee or relying on such history in determining whether to offer employment or in determining wages or salary. Senate Bill 6549 – signed into law by Governor Cuomo on July 10, 2019 – also protects applicants and employees from retaliation based on such wage or salary history (or failure to provide such information). (New York City’s salary history ban has been in effect since October 2017.)
Under the new law, an employer will no longer be permitted to seek from an applicant, current employee, or his/her current or former employer (or its employees or agents) wage or salary history as a condition of being interviewed or considered for a position or as a condition of employment or promotion.
An employer also may not refuse to interview, hire, promote, or otherwise employ an applicant or current employee based on his or her prior wage or salary history, failure to provide such information, or filing of a complaint alleging violation of this law. An aggrieved applicant or employee may bring a civil action for damages, injunctive relief and attorneys’ fees.
The law is not intended to prevent an applicant or employee from providing prior wage or salary information voluntarily, without prompting by the employer. An employer may confirm wage or salary history if, at the time an offer of employment with compensation is made, the applicant or employee provides such information in an attempt to negotiate a higher offer.