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.
Suffolk County, New York has passed a law making it unlawful for employers and employment agencies with four or more employees to inquire about a job applicant’s salary history or otherwise to rely on such information in setting a new employee’s compensation. Entitled A Local Law to Restrict Information Regarding Salary and Earnings (“RISE Act”), this new law is designed to “help break the cycle of wage discrimination and close the wage gap” for statistically underpaid individuals, such as women and racial and ethnic minorities. This is similar to measures that have already been enacted in New York City, Westchester County, and Albany County. It will go into effect on June 30, 2019.
What the RISE Act Provides
No Inquiries About a Candidate’s Salary History. This legislation amends the Suffolk County Human Rights Law by adding a provision that makes it an “unlawful discriminatory practice” for an employer or employment agency to make verbal or written inquiries about an applicant’s salary history. “Salary history” includes current or prior wages as well as benefits and any other forms of compensation. Prohibited inquiries include requests to the applicant or his or her former employer as well as searches of publicly available information.
No Consideration of Salary History in Setting Compensation. The law also prohibits an employer or employment agency from relying on an applicant’s salary history in determining the salary, benefits, or other forms of compensation for that applicant. Unlike its New York City counterpart, the Suffolk County law does not carve out salary information that is volunteered by an applicant. Accordingly, Suffolk County employers and employment agencies should not only avoid requesting such information, but should also be careful not to rely on such information in setting a new employee’s compensation even if it is voluntarily provided.
Exceptions. The law does not prohibit employers or employment agencies from verifying a candidate’s salary where required by federal, state or local law. It also does not impact the rights of employers and employees that may exist pursuant to a collective bargaining agreement. Lastly, given the RISE Act’s intent to address “compensation for new employees,” the law does not appear to prevent an employer or employment agency from considering current employees’ salary history when deciding raises, promotions, transfers or other internal employment actions, but this possible exception is not explicitly addressed in the law.
Enforcement. The Suffolk County Human Rights Commission is the agency charged with enforcing the Suffolk County Human Rights Law, including this new provision. The Commission may impose civil penalties of up to $50,000 for an unlawful discriminatory act, and up to $100,000 if the violation is “willful, wanton or malicious,” as well as compensatory damages to the aggrieved individual. In addition, an individual may bring a civil lawsuit and, if successful, may receive compensatory damages, back pay, attorney’s fees and costs.
Next Steps. Employers in Suffolk County should start reviewing their employment applications, policies and hiring practices to be certain that questions regarding salary history are eliminated from the interviewing and hiring process. Additionally, any written policies must fully conform to the law. Human Resources personnel, recruiters, and anyone else involved in the recruiting and hiring process should also be trained as to the new law’s requirements.