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This is the first in a series of blog posts concerning recent employment law developments in New York State and City:

On October 31, 2017, NYC’s salary history ban took effect (Int. 1253-2016). With limited exception, this law bars employers of all sizes from inquiring or requesting information – through any means, including searches of public records, background checks, and requests to prior/current employers – about a job applicant’s salary history, or relying on such information in setting compensation for a particular applicant.  The ban extends to virtually all wages, benefits, bonuses, commissions earned, retirement plans, profit percentages, auto allowances, and other compensation.  Nor can employers make disclosure of such information a voluntary option (e.g., on a job application).

Notably, the law applies not only to applicants for employment, but also to applicants for independent contractor work who themselves have no employees. It does not, however, apply to applicants for internal transfer or promotion within their current employer.

If an employer inadvertently uncovers information about an applicant’s salary history by, for example, searching publicly available information about the applicant, the employer may not rely on that information in determining what to offer the applicant in salary, benefits, and other compensation. On the other hand, if the applicant voluntarily and without prompting discloses his or her salary history, the employer may in fact consider such information in determining compensation terms.

Moreover, although the law bans all salary history inquiries, it does permit employers to inquire into an applicant’s compensation expectations or demands. The law also permits employers to make statements about the anticipated salary, salary range, bonus, and benefits for a particular position.

Geographic Scope

As to the geographic scope of the law’s coverage, the NYC Commission on Human Rights (NYCCHR), the local agency that enforces the law, has said that a violation of the Act can occur if the impact of the unlawful discriminatory practice is felt in New York City. More particularly, the NYCCHR has stated that “[i]f an unlawful discriminatory practice, including an inquiry about salary history, occurs during an in-person conversation in New York City, there will likely be jurisdiction because the impact of the unlawful discriminatory practice is felt in New York City.  If an unlawful discriminatory practice occurs outside of New York City, there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City.  Entities should apply the same jurisdictional analysis in this context that they would involving other areas of the City Human Rights Law (e.g., in the employment context, residency in New York City alone, without more, is generally not enough to establish impact in New York City).”
Continue Reading NY State of Mind: New State and City Laws (Part 1) – NYC’s Salary History Ban

Amend, extend and clarify: the 2016 legislative session was not so much about creating new rights and responsibilities under California employment law, but more about expanding and addressing lingering questions that stem from existing workplace mandates. However, don’t be fooled by the lack of “new” regulations. By amending many of California’s complex existing laws, the legislature certainly placed HR departments and employment counsel in a difficult position to prepare for compliance by the looming January 2017 implementation date (for most of these laws). With a full plate of issues, such as workplace health and safety, pay equity, hiring, leave laws, harassment and discrimination, and, of course, wage and hour updates (no big surprise there), the class of 2017 will make an impact that will last for years and spur on dramatic change.

In this first portion of our two-part review of the employment law class of 2017, we will focus on developments in discrimination, anti-Retaliation and discharge, hiring and background checks, and workplace health and safety. In part II we will focus on developments in wage and hour law, leave laws, industry-specific regulations, and California’s recent legislation affecting choice-of-law in employment contracts.
Continue Reading California’s Employment Law Class of 2017 (Part I): The Laws, Their Effects and Some Recommendations for Compliance

The General Assembly has passed three bills amending the civil service provisions of the First Class Township Code, Borough Code and Third Class City Code. Gov. Tom Corbett has signed into law the amendments to the First Class Township and Third Class City Codes, and is expected to sign the amendment to the Borough Code. …

To prevent job applicants with criminal records from automatic hiring rejection, cities and states are considering and already adopting so-called “Ban the Box” laws and ordinances. Among the states that have adopted such a law are Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico, and the cities of Atlanta, Baltimore, Chicago and Philadelphia. Among the states mulling such legislation are Rhode Island and Nebraska, and the city of Pittsburgh.

This Alert lauds the policy considerations behind “Ban the Box” type of legislation but points out how it can unintentionally create impossible-hiring decisions and pose huge legal risks for employers.

“Ban the Box” legislation, as discussed in the “Philadelphia Joins the Movement To Ban Inquiries into Arrests and Convictions on Employment Applications,” restricts and, in Philadelphia and other locales, limits covered employers from asking about an applicant’s criminal record during the hiring process. The laws in Connecticut, Hawaii, Minnesota, New Mexico, and Massachusetts, and the bill proposed in Rhode Island, forbid covered employers from asking an applicant about a conviction until after assessment of his or her qualifications for the job. Though the laws in Connecticut, Minnesota and New Mexico apply only to public (meaning government) employers, there is mounting support to amend them to cover private employers, as in Hawaii, Massachusetts, and Philadelphia.Continue Reading The Dangers to U.S. & Worldwide Employers from ‘Ban the Box’ Legislation

On April 13, 2011, Philadelphia Mayor Michael Nutter signed a new city ordinance that bans Philadelphia employers from asking applicants about their convictions during the initial phases of the hiring process and precludes them from ever asking about arrests which failed to result in a conviction. Due to become effective on July 12, 2011, the…