New Employment Law Takes Effect: Section 194-A Wage and Salary History Inquiries Prohibited

A new employment law, a salary history law, will go into effect on January 6, 2020 and will apply to all employers in the state, including public employers. This law prohibits an employer from asking about a prospective hire’s salary history. Again, this law will be a great support for women in the workplace.

“The idea behind this law is that if women start with lower initial salaries than men, the lower salary will follow women throughout their careers when prospective employers inquire about much money the woman currently makes,” Wood said. “Under the new salary history law, employers are prohibited from asking an applicant about his/her salary history when being interviewed or as part of a promotion. Prospective employers are also prohibited from seeking salary information from the individual’s former or current employer. If a prospective employee voluntarily provides salary history information without being prompted by the prospective employer, the employer is still prohibited from relying on this information to determine whether to make a job offer or when setting the employee’s salary.”

In preparation for the new salary history law, Wood recommends that all employers initiate a thorough review of their application paperwork and any interviewing materials to ensure that they do not include questions relating to salary history. They will also be responsible for determining a fair salary for an employee without knowing how much they made previously at a similar job, which could prove challenging at first.

This law will change the dynamic for applicants as well, as they will now have to decide whether they want to volunteer that salary information to a prospective employer. Wood anticipates that this law will cause a slight shift in power from the employer to the applicant during the pre-employment process.

“The employer will enter the interview process without the knowledge of what salary the candidate is seeking, which gives the jobseeker a slight upper hand in negotiations, as the employer cannot base its offer off prior salary information,” Wood said. “Because the employer lacks prior salary information, the potential employee may need to negotiate with the employer in order to reach a salary acceptable to him/her.”

Wood also pointed out that the new law does not prevent employers from asking an employee how much they would like to make, which does provide the employer with a baseline to begin negotiations. This could lead to jobseekers receiving lower initial salary offers as employers try to navigate the new process.

“Employers now have no way of knowing whether their salary offer is in line with, or better than, what the prospective employee currently makes in his/her current position,” Wood said. “Without this information, employers may err on the side of keeping the initial salary offer low with the expectation that the employee will negotiate to a salary comparable or better to his/her prior salaries. However, this may also lead to jobseeker frustration, particularly if the jobseeker is unaware that the employer is legally prohibited from asking about prior salary and/or does not anticipate negotiating his/her salary.”

Wood advises all employers to familiarize themselves with the new laws and re-examine their hiring processes to ensure compliance with the new standards. She suggests that prospective employees contact an experienced labor and employment law attorney if they believe they have been discriminated against by their employer or if a prospective employer violated the salary history law during their interview process. She also advises employers to reach out if they have questions about how to comply with the new standards.

Excerpt from October 6, 2019 Buffalo Rising article, "Updates on New Employment Laws from Hurwitz & Fine," by Sarah Maurer.

For the original Buffalo Rising article, click here.

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