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Bans on Employer Inquiries about Salary History Gain Traction in New Jersey and Around the Country

Wage disparity is an important—and controversial—topic in American politics. Women, on average, tend to make less than men. The same is often true for people of color as compared to White employees. Some lawmakers and officials at the local and state level are looking at ways that employers, intentionally or not, may perpetuate wage gaps through inquiries into job applicants’ salary histories. Such inquiries may make it difficult for job applicants to negotiate salaries that break from historical patterns of wage disparity. Bans on employer salary history inquiries are becoming more common around the country. Statutes focused on New Jersey employment law do not prohibit such inquiries by private employers, but a 2018 executive order prohibits them among state offices and agencies. Earlier this year, Suffolk County, New York became the latest local government to enact a salary history ban. A few states, such as Wisconsin and Michigan, have gone in a different direction by barring local governments from enacting bans of their own.

New Jersey Governor Phil Murphy signed Executive Order #1 on January 16, 2018, in his first official act after he took the oath of office. The text of the order notes that women in New Jersey receive wages of eighty-two cents for every dollar paid to men in full-time jobs, and that this gap appears regardless of industry or education level. These disparities are even more pronounced when the full-time wages of African-American and Latina women are compared to those of White men in New Jersey—fifty-eight cents and forty-three cents, respectively. The order declares that New Jersey workers “should be compensated based on the nature of the work and services they provide.”

The order took effect on February 1 of last year. It prohibits state entities from inquiring about salary history, including both direct inquiries to job applicants and independent investigations, until a conditional offer of employment has been made. Applicants may voluntarily provide information, but may not be required to do so. If a state entity already has information about an applicant’s salary history, it may not consider that information when making a hiring decision, unless a statute or collective bargaining agreement requires it to do so. The executive order does not create a private cause of action for aggrieved job applicants, but does empower the governor’s office to investigate claims “and take appropriate remedial measures.”

The legislature of Suffolk County enacted the Restricting Information on Salaries and Earnings (RISE) Act in November 2018. It will take effect in June 2019. It will be an “unlawful discriminatory practice” for an employer to inquire about salary history, either by asking an applicant directly or by investigating available records. Employers also may not rely on salary history information already in their possession when making employment decisions. The RISE Act applies to private employers in Suffolk County. Aggrieved individuals may file a complaint with county officials, or they may file a lawsuit. See Suffolk Cty. Code §§ 528-7, 528-13. A law enacted by the New York City Council in May 2017 added similar provisions to the New York City Human Rights Law. See N.Y.C. Admin. Code § 8-107(25).

If you are involved in a dispute with your employer in New Jersey or New York, the Resnick Law Group’s team of skilled and experienced employment attorneys is here to assist you. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation to discuss your case.

More Blog Posts:

New York City Bans Employers from Asking About Salary History, The New Jersey Employment Law Firm Blog, July 14, 2017

New Jersey Law Against Discrimination Now Protects Workers from “Salary Secrecy” by Prohibiting Retaliation for Inquiring About Wage Discrimination, The New Jersey Employment Law Firm Blog, March 31, 2014

New Jersey Gender Discrimination Target of New Pay Parity Law, The New Jersey Employment Law Firm Blog, October 17, 2012

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