Beware: NYC Ban on Asking for Salary History Effective on Halloween: Employers Receive Guidance on Implementation

As we wrote about in April, starting on October 31, 2017, a NYC law will make it unlawful for employers of any size to inquire about a job applicant’s salary history during the hiring process by either: (1) asking about compensation history on a job application or during the interview process; or (2) conducting internet or other searches, contacting prior employers or running background checks in an effort to determine the applicant’s compensation history. Employers can only use an applicant’s compensation history to build a job offer if the applicant “unprompted” and “willingly” discloses that information.

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Recruiting and “Off-Limits” Questions about Salary History – What Employers Need to Know

By October of 2017, NYC employers – and their recruiting agencies – will no longer be allowed to ask about an applicant’s salary and benefits history during the interview process due to a recent amendment to the NYC Human Rights Law. This law follows Executive Orders signed in November 2016 by Mayor de Blasio, and in January 2017 by Governor Cuomo, banning questions about salary history for NYC and NY state public-sector applicants prior to a conditional offer of employment. In addition, private employers in Philadelphia as of May 2017, and Massachusetts as of July 1, 2018, will also be banned from asking applicants about their compensation history. These laws are intended to help break the perpetuation of salary inequities by prohibiting reliance on prior, possibly inequitable compensation levels, as a means to set salaries and other compensation for incoming employees. Public Advocate Letitia James co-sponsored the NYC bill after a study conducted by her office found that women in New York earn $5.8 billion less in wages than men every year, or 87 cents for every dollar that men make, and the wage discrepancies were worse for minority females.

What does the NYC law prohibit?

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New York City Expected to Pass Expansive Paid Sick Leave Law

By: Lynne Anne Anderson

The New York City Council has reached a compromise that will enable it to pass a paid sick leave law.  Although Mayor Michael Bloomberg objects to the legislation, news outlets are virtually unanimous in predicting that the City Council has enough votes to override his veto.  While federal law does not require employers to provide paid sick leave, Connecticut and some cities (including San Francisco, Seattle and Portland) have adopted paid sick leave laws.  Other cities (including Philadelphia) are considering doing so.  In New York City, even employers that already provide paid sick leave will have to take a close look at the new legislation and reconcile their current sick leave policies with the city’s mandates.  For example, New York City’s proposed law includes anti-retaliation provisions that would prohibit employers from firing employees for using their paid sick leave.

What employers are covered by the proposed law and when would it go into effect?

Under the proposed New York City law, as of April 1, 2014, companies with 20 or more employees would have to provide at least five paid sick days a year.  The law would be extended to apply to companies with 15 or more employees as of October 1, 2015.   Earlier versions of the legislation had required nine paid sick days, so five days was part of the compromise lawmakers reached in response to small business owners’ very vocal objections.  The New York City law is not as expansive as some other city laws.  For example, paid leave obligations in San Francisco, Seattle and Portland apply to companies with as few as five employees.

Notably, the New York City law will also require companies of any size to provide five days of sick leave as of April 1, 2014, but the time off may be unpaid.

What employees would be eligible?

To be eligible for paid leave, employees working within the borders of New York City would have to be employed for at least 4 months.  The law applies to full-time and part-time workers, although seasonal workers and student interns would not be eligible.

Other details include that the New York City Department of Consumer Affairs would have enforcement authority and there is a safety net provision that would delay implementation of the law if New York City’s economy slows down.

Advocates of the legislation claim that the law will provide paid sick leave for one million workers.  It is clear that this law will have a significant impact on small businesses.  The Society for Human Resource Management reports that only 32% of small businesses (50 or less employees) currently offer paid sick leave, and an advocacy group, A Better Balance, reports that over 80% of restaurant workers and 60% of retail workers in New York City do not receive pay when they miss work due to sickness.  As noted above, this law will also impact larger employers to the extent that they do not already provide five days of paid sick leave or only offer benefits to full-time employees or employees employed for longer than four months.  And, as with any new law, it is important to track implementation to comply with notice requirements, both in terms of posting and adoption of compliant company policies prior to the April 2014 and October 2015 effective dates.

Editor’s Note:

On May 8, 2013, the New York City Council passed the Earned Sick Time Act by a 45-3 vote.  New York City Mayor Michael Bloomberg had vetoed the bill on June 7, 2013, but the New York City Council overrode the veto on June 27.   New York City now joins San Francisco, Washington, D.C., Seattle, Portland, and the State of Connecticut to pass mandatory sick leave laws.