New Law Forbids Questions About Salary History in Job Interviews

Most co-op and condo boards are aware that hiring personnel and approving sales applications are minefields, with awards in discrimination complaints routinely reaching six figures – and beyond. Now there’s something new for boards to worry about.

The New York City Council has passed legislation that would forbid employers, including co-op and condo boards, from asking prospective employees about their salary history. The legislation, submitted by Public Advocate Letitia James, is intended to close the wage gap between male and female workers. Women earn 87 cents for every dollar men make.

“The hiring itself will now become very difficult,” says Jessica Walker president and CEO of the Manhattan Chamber of Commerce. “Especially for the smaller companies, it will be more difficult to evaluate potential job candidates.”

“The law prohibits you from directly inquiring about a salary history,” says attorney Marc Zimmerman, a partner in the firm Phillips Nizer. “But if an applicant offers to divulge their salary history unprompted, then it can be considered. This leaves a lot of questions: What exactly does it mean to be unprompted? There is a gray area here which leaves legal traps, especially for small companies who don’t have a huge Human Resources department with lots of lawyers.”

The goal of the bill is to erase the pay disparity by focusing the hiring process on qualifications, skills and experience – rather than past pay. “I’m not sure you will get these intended results by simply saying you cannot ask that question,” says Zimmerman.

“Most likely the average small employer would never think that the question about salary history is now illegal,” says Walker. “They want to comply with the law but it is very difficult to be always aware of what the law is. And the enforcement remedies are very steep and punitive.”0

Zimmerman adds: “Smaller employers pull their applications off the internet. They’ve had the same procedures in place for the last 15 years, and there will be boxes [on the job application] that say, ‘Are you employed?’ ‘Who is your employer?’ ‘What is your current salary?’ And they will use these same applications, which are now, per se, unlawful.”

Zimmerman advises all boards to consult a lawyer who specializes in labor issues in order to avoid such pitfalls. If boards are working off old applications, they might already have run afoul of the law. Since October 2015, employers commit a discriminatory act if they run a criminal background check on a job applicant before actually offering the job.

“Asking about salary history will now also become a discriminatory act,” says Walker. “An applicant who has been asked that question can now go to the Human Rights Commission, or to seek remedy in the court. That will get very costly for the employer.”

Zimmerman advises to avoid the subject matter completely: “The best advice I can give to employers right now is to develop a salary range for a position. You can always tell an applicant what the salary range is. If you do that, then you are setting up the employee’s expectations. Then perhaps the employee might divulge their payment history and, presumably, you have a willing and unprompted discussion of salary history. But still, one has to be careful. It’s a trap, a potential pitfall.”

Mayor Bill de Blasio is expected to sign the bill into law, though he has not set a date. In November 2016, he signed an executive order prohibiting all city agencies from inquiring about job applicants’ salary history.