Westchester County’s salary history ban, signed on Equal Pay Day in April 2018, took effect on July 9, 2018. The law amends the Westchester County Human Rights Law, and makes it unlawful for an employer, including labor organizations and employment agencies or “agents” thereof, to:
- rely on the wage history of a prospective employee from any current or former employer in determining wages; and
- request or require as a condition of being interviewed, as a condition of being considered for an offer of employment, or as a condition of employment, that a prospective employee disclose wage history information.
The law makes a limited exception if the wage history information is “voluntarily provided by a prospective employee to support a wage higher than the wage offered by the employer.” If wage history information is voluntarily provided by a prospective employee to support a higher wage, the employer may confirm it with the prior employer “only after an offer of employment with compensation has been made to the prospective employee,” and only with the written consent of the prospective employee. The law also bans retaliation against someone for exercising his or her rights under the law.
The new law is similar to legislation enacted in New York City last year. The NYC ban made it unlawful for employers to rely on salary history information, but permitted employers to inquire about applicants’ expectations or salary demands. Westchester County’s law strikes a similar chord by allowing employers to utilize wage information where an employee voluntarily has disclosed such information for the purpose of obtaining a higher wage. Although the law does not explicitly prohibit conducting Internet searches to determine compensation history, like the NYC ban, it does prohibit all reliance on wage history and makes any information learned from independent research unusable for employers.
In anticipation of a possible statewide salary ban, the Westchester County law also provides for nullification if and when a similar state law is passed and effective.
Westchester County joins a growing list of cities and municipalities enacting such legislation, including New York City, Philadelphia and San Francisco. Several states, including California, Delaware, Massachusetts, Oregon, and, arguably, New Jersey, have also enacted salary history bans.