Don’t Ask a Job Applicant What they Made Before Coming to Work for You

The Equal Pay Act is a United States labor law aimed at abolishing wage disparity based on gender.  Although enacted in 1963, statistics show that today women earn approximately 14% less than men in comparable roles.

49 years ago, the women of Ford strike for equal pay, the trigger which passed the Equal Pay Act.

 

Soon, state laws and city ordinances will prohibit employers and their agents from requesting previous pay histories and benefits history from candidates being interviewed for positions. The purpose of such acts is to equalize wage disparities between men and women.

Presently, New York City has the only active equal pay ordinance. Philadelphia enacted an ordinance but it is currently being challenged in court by the Chamber of Commerce. Massachusetts has enacted an equal pay statute that goes into effect on July 1, 2018. Delaware has passed a statute that becomes effective in December 2017. Oregon’s statute is effective on January 1, 2019. California has a bill pending in their State legislature. Congresswoman Maxine Waters (D, CA) has an equal pay bill pending in the House of Representatives.

Although these acts are from different jurisdictions, the pertinent provisions provide:

  • An employer shall not rely on the salary history of an applicant for employment as a factor in determining whether to offer employment or what salary to offer.
  • An employer shall not, orally or in writing, or through an agent (a recruiter), seek salary history information, including compensation and benefits.
  • An applicant can voluntarily, without prompting, disclose salary information to a prospective employer.
  • Even if the information is voluntarily disclosed, prior salary may not be used in establishing the salary for the incoming employee.

Damages vary from jurisdiction to jurisdiction. However, with regard to the New York City ordinance, The New York City Commission on Human Rights will be charged with enforcing the NYC Human Rights Law. The Commission may impose a civil penalty of up to $125,000 for an unintentional violation, and up to $250,000 for a “willful, wanton or malicious act.” In addition, an individual may bring a civil lawsuit for violations of the law. The full range of relief available under the New York City Human Rights Law will be available in such a lawsuit, including back pay, compensatory damages, and attorneys’ fees. Regardless where your company is headquartered, if you do business in NYC, you are subject to this ordinance.

Since an applicant has the right to file suit, plaintiffs’ attorneys may be very interested in suing to protect their clients’ rights, especially with the potential to recover compensatory damages and attorneys’ fees.