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.”