Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 12, 2019, Cincinnati, Ohio passed an ordinance1 prohibiting employers from asking applicants about their salary history or current earnings. It is the latest large jurisdiction to pass such a measure, following several localities in New York that have recently passed similar ordinances.2
The new “Prohibited Salary History Inquiry and Use” provision of the city code, makes it an illegal discriminatory practice for a company within the city to ask applicants about their past or current salary, screen applicants based on wages or benefits, rely on salary history in hiring decisions or in determining compensation, or to refuse to hire or otherwise retaliate against an applicant who refuses to provide his or her salary history.
According to the introductory remarks in the ordinance, the measure is intended to address the city’s view that using past salaries to set pay for a new hire can “perpetuate existing discrimination against women in the workforce.” The introduction also specifically mentions the city’s concern that lower salaries for African American women and the effects of workplace discrimination on employees who identify as LGBTQ would also continue if salary is based on past compensation.
The salary history measure excludes several situations where employers are allowed to consider an applicant’s past wages, such as internal transfers or promotions, situations where employees are rehired within five years of leaving a company, or in situations where federal law allows employers to consider salary. Companies are also allowed to look at salary information if it comes up in the process of a background check while verifying non-salary-related disclosures from an employee, as long as this information is not used as a basis for determining compensation during hiring. In addition, the measure does not apply to any “voluntary and unprompted” disclosures related to an applicant’s pay history. There is no specific penalty or fine outlined in the measure, but applicants who are harmed by an employer that violates the provision may bring suit within two years of the violation and can recover compensatory damages, attorney’s fees, and costs.
The salary history ban will take effect one year from the date of the ordinance. Within that time the city council has been tasked with creating a Salary History Implementation Working Group (Working Group), whose purpose is to assist and advise Cincinnati employers on the impact and implementation of this ordinance. The Working Group will be chaired by the City Manager and have five members from a “diverse and relevant range of sectors” of the Cincinnati employment industry. The mayor will appoint two of these members and the city’s Equity, Inclusion, Youth & The Arts Committee will appoint the other three.
Employers in Cincinnati should undertake a review of hiring practices and interviewing techniques to make certain they will not violate this new salary history ban. In addition, companies should take care to look for the Working Group’s recommendations and guidance within the coming year.
1 Cincinnati, OH, Ordinance 83 (2019).
2 John Bauer and Kelly Spina, Suffolk County Set to Become the Fourth New York Jurisdiction to Ban Salary History Inquiries, Littler ASAP (Dec. 10, 2018).