When Can an Employer Request an Applicant’s or Employee’s Salary History?

In a tight labor market, many employers struggle to provide the most competitive employment offers, including competitive salaries and wages.  Are employers permitted to request an applicant’s current salary in an effort to be more competitive?  More likely than not, the answer is no.  Under New York State Labor Law, there are very few circumstances under which an employer may request the salary history of an applicant or even a current employee.  

Prohibition Against Requesting Salary History.

New York State Labor Law prohibits public and private sector employers from requesting, requiring, or seeking a job applicant or current employee’s salary or wage history as a condition to receive an interview, to receive an offer of employment, or for continued employment or promotion.  Employers are also prohibited from relying on salary or wage history whendetermining whether to offer employment or in determining the wages or salary to offer an applicant.

It is important to note that if an employer obtains salary information from a source other than an employee, the employer cannot use the information to determine whether to offer employment or in determining the employee’s salary.  

When Can You Use Salary Information?

An applicant or current employee may voluntarily disclose or verify his/her wage or salary history.  Note, this disclosure must be voluntary and without prompting by the employer.  An employer may then confirm the wage or salary history of the applicant or employee.  However, efforts to confirm salary history cannot occur until after the employer has made a wage or salary offer and the applicant or employee disclosed prior wage or salary information in an effort to request a higher offer.  

Retaliation.

The law prohibits an employer from refusing to interview, hire, or promote an individual, or otherwise retaliate against an applicant or employee, based on (1) the applicant or employee’s wage or salary history, (2) the applicant or employee’s refusal to provide wage or salary history, or (3) an applicant or employee pursuing a remedy under the law.

What are the Consequences for a Violation?

If an employer violates the law, an applicant or current or former employee may file a complaint with the Department of Labor or bring a civil action in court for compensation for any damages on behalf of him/herself, or other persons similarly situated – meaning the individual can file a class action. In addition to damages, the court may award injunctive relief and reasonable attorneys’ fees.

Intent is Not Relevant.

The purpose of this law is to prevent wage inequality by prohibiting employers from using salary history as a means to “justify lower pay rate and/or marginal pay increase”. However, it is important to remember that the law does not take into consideration an employer’s intent in requesting salary information.  There is no exception for requesting information where an employer’s intent is to offer more competitive salaries, not to “justify lower pay”.