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New York’s Salary History Ban: Still Waiting to be Enforced

Posted January 5th, 2021 by Russell Kornblith in Employment Discrimination.

Effective January 6, 2020, New York banned employers from asking job seekers and employees about their compensation history. The same law, Labor Law § 194-a, prohibits employers from relying on salary history in deciding whether to offer employment to an applicant as well as in determining salaries for applicants and employees. The law also prohibits the employer from seeking salary history information from a former employer or agent of the applicant (e.g. a headhunter).

The change is an important step in furtherance of New York’s goal of ensuring that historic discrimination or depression in salaries will not form the basis for future discrimination in salary. Unfortunately, however, the law’s promise has yet to be fully fulfilled.

According to the legal research service Westlaw, the law has yet to be cited in court. In other words, even though the law provides a forum to litigate these disputes, no New Yorker has yet done so.

One might think that it’s just a matter of time; that, surely, the lawyers and lawsuits will come.

Not so. California enacted similar effective January 1, 2018. Since then, like New York Labor Law section 194-a, California Labor Code section 432.3 has prohibited California employers from seeking an applicant’s salary history or relying upon that history in setting an employee’s salary.

California has also been slow to take advantage of this tool. No court decision has yet relied upon the law. And the law’s only citation appears to be in context of a federal court decision evaluating whether the federal Equal Pay Act, which bans paying men and women different wages for the same or similar work, permits an exemption for salary history. (The case, Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020), ultimately determined that the federal Equal Pay Act bars employers from using salary history to justify paying men and women differently, because  permitting this justification would perpetuate historical pay discrimination against women.)

So where does that leave us? One may believe that salary history bans have been so effective that enforcement through lawsuits has been unnecessary. More likely, however, at least in the opinion of this author, is that many employees lack knowledge of these protections. And more, still, do not even know that their employers have considered these forbidden factors.

Nonetheless, New Yorkers and Californians who believe that they have experienced depressed salaries on the basis of their prior salaries should not be deterred. They should instead contact a New York employment lawyer or California employment lawyer who can evaluate their case.

Russell Kornblith is the New York Managing Partner who works on both qui tam / whistleblower cases and on discrimination cases.
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