As described in our previous advisories (available here and here), New York City recently amended its Human Rights Law (the “NYCHRL”) to prohibit inquiries into applicants’ salary histories during the hiring process (the “Amendments”), effective October 31, 2017. In anticipation of this impending effective date, the New York City Commission on Human Rights - the agency responsible for enforcing the NYCHRL - released fact sheets on September 12, 2017, to help employers and job applicants interpret the Amendments.
The fact sheets (available here and here) remind employers and applicants alike that employers are prohibited by the Amendments from asking about or otherwise soliciting information concerning applicants’ current or prior rate of pay, either from the applicants directly, from their current or prior employers, or from public records. The fact sheets also provide some examples of employer practices that would not violate the Amendments, including:
• Stating an anticipated salary range for a position;
• Asking about an applicant’s compensation expectations in the event he or she is offered the position; and
• Making inquiries about past substantive work performance and responsibilities.
The fact sheet addressed to job applicants specifies that the Amendments’ protection extends to interns and to independent contractors who do not have their own employees. In combination with the Freelance Isn’t Free Act, which went into effect earlier this year and which extends to freelancers certain protections akin to those afforded to employees under applicable wage payment laws (a summary of which is available here), the Amendments further blur the line between employees and independent contractors in New York City.
Other questions regarding the reach of the Amendments are not answered by the fact sheets. The fact sheets state, without elaboration, that the Amendments protect “most applicants for new employment in New York City.” While it is undisputed that the Amendments protect residents of New York City who are applying for jobs within New York City, it remains unclear whether, for example, an employer with headquarters in New York seeking to hire employees to work in a facility in New Jersey would be precluded from asking about an applicant’s salary history without first determining whether the applicant is a resident of New York City. On this point, in 2010, the New York’s highest court, the Court of Appeals, clarified that the NYCHRL protects “nonresidents who work in the city,” but the Court did not reach the question of whether the NYCHRL likewise protects nonresidents who apply for work in the city. Hoffman v. Parade Publs., 15 N.Y.3d 285, 290 (N.Y. 2010).
Employers that have not already reviewed their application and interview processes for compliance with the Amendments should do so immediately. New York City employers should also review their practices concerning responses to third-party inquiries about former employees. And finally, given that a growing number of jurisdictions prohibit inquiries into applicants’ salary histories (DWT’s recent summary of that trend is available here), many employers may find it easier to adjust their interview processes globally, rather than attempting to navigate this patchwork of state and local laws.