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.
Continuing the recent deluge of salary history ban laws,1 on July 25, 2019, New Jersey Lieutenant Governor Sheila Oliver signed Bill A1094 into law.2 Like other recent laws limiting salary history inquiries, New Jersey’s law prohibits employers from screening job applicants based on the applicant’s prior salary history, which includes prior wages, salary or benefits. In addition, employers may not require that an applicant’s salary history satisfy any minimum or maximum threshold to be considered for a job. The new law takes effect on January 1, 2020.
The law provides for a private right of action as well as civil penalties from $1,000-$10,000 per violation depending on the circumstances. The law does not expressly define what conduct will be considered as a single “violation” for purposes of calculating penalties.
Fortunately for employers, New Jersey’s law contains examples of expressly permitted activities and exceptions from coverage in certain key areas:
- Employment Application: If an employer has a multi-state employment application that includes operations outside of New Jersey, the employer is allowed to have a salary history question with a disclaimer that an applicant for a position located in whole or in substantial part in New Jersey is instructed not to answer the question.
- Voluntary Disclosure: If an applicant voluntarily discloses (defined as without prompting or coercion) his or her salary history, the employer may both: (1) verify that the information the applicant provided was accurate and (2) use the information to determine the applicant’s compensation.
- Post-Offer Verification: An employer may obtain written authorization from the applicant to confirm salary history after an offer of employment that contains an explanation of the offered “overall compensation package.”
- Internal Transfers or Promotions: The law does not apply to applications for internal transfer or promotion.
- Background Checks: If an employer informs its background check vendor that salary history information is not to be disclosed to the employer, but for some reason the background check includes a disclosure, the disclosure will not violate the law. However, the employer will have to destroy the salary history information and not use it.
- Incentive and Commission Plans: Employers are allowed to discuss the “terms and conditions” of incentive and compensation plans the applicant was subject to at a prior employer, provided that: (1) the employer does not ask about the specific dollar amounts involved in the plans and (2) the job the applicant applied for with the prospective employer includes an incentive or commission component.3
New Jersey’s law also contains perhaps the most nuanced approach to employment agencies compared to similar salary history laws. The law provides that (a) applicants may disclose salary history information and information regarding the applicant’s experience with incentive and commission plans to employment agencies the applicant is using to search for work and (b) the employment agency may provide that information to employers as long as it has the applicant’s express written consent. Employers will have to await further guidance as to how courts and the N.J. Commission of Labor and Workforce Development will interpret the specifics of this provision given the overarching prohibition on employers’ using salary history information to screen applicants otherwise.
Finally, unlike some recent laws and ordinances, New Jersey’s law does not require that the employer affirmatively disclose a wage scale for applicants.4
- Employers with operations in New Jersey or other affected salary history ban states should consider evaluating the contents of job applications, interview guidelines or templates, recruiter instructions and background check vendor instructions to ensure that no impermissible salary history inquiries or screening is conducted.
- Employers with operations in multiple states should consider forming a working group to assess business needs with respect to applicant wage data and the best multi-state or “50-state” approach to salary history inquiries and use given those needs. As New Jersey’s law demonstrates, there is no “template” or “model” law adopted for salary history bans, as every law is unique in its coverage, prohibitions and exemptions.
- Employers may want to consider appointing an employee with subject matter experience on this issue (or consulting employment counsel) to remain up-to-date on salary history ban laws as well as the full array of state and local laws impacting hiring compliance, such as the Fair Credit Reporting Act, ban-the-box laws and fair chance acts, credit check bans, social media inquiry prohibitions, revamped pay equity laws, and others.
1 See, e.g., Jean L. Schmidt and Sean A. Malley, New York Expands Pay Equity Law Beyond Equal Work and Gender and Bans Inquiries into Salary History, Littler ASAP (July 11, 2019); Katherine Suttle Weinert, Alabama Enacts Pay Equity Law, Littler ASAP (June 13, 2019); Alexandra Hemenway and Dylan Long, Kansas City, Missouri Joins National Movement to Ban Salary History Inquiries, Littler ASAP (May 31, 2019); Breanne Martell and Alexandra Hemenway, Washington Amends its Equal Pay Law to Enact Salary History Ban and Require Disclosure of Salary Ranges, Littler ASAP (May 16, 2019); Jennifer Harpole, Colorado Legislature Passes Significant Equal Pay Bill, Including Salary History Ban and Job Posting Requirements, Littler ASAP (May 8, 2019); Toledo, Ohio Ordinance O-173-19.
2 Lt. Gov. Oliver is serving as New Jersey Acting Governor while Governor Phil Murphy is on vacation.
3 The law also exempts any employer actions taken because a federal law or regulation requires the disclosure or verification of salary history for employment purposes or requires knowledge of salary history to determine an employee’s compensation.
4 This is a requirement under the California, Colorado, Cincinnati, Toledo, and Oregon laws.