United States: NYC Commission On Human Rights Releases Faqs On Salary History Law In Advance Of October 31 Effective Date

Last Updated: October 18 2017
Article by Aaron Warshaw and Shabri Sharma

As we previously reported in April of 2017 and May of 2017, New York City employers may want to prepare for the New York City salary history law, which will go into effect on October 31, 2017. With limited exceptions, the law prohibits employers from asking applicants about their current or prior compensation, or relying upon salary history to determine an applicant's compensation. In advance of the law's effective date, the New York City Commission on Human Rights published fact sheets and answers to frequently asked questions (FAQs) to clarify the scope of the new law. The law itself will be codified under the New York City Human Rights Law (NYCHRL) at New York City Administrative Code Section 8-107(25). Below is a non-exhaustive summary of the Commission's FAQ guidance.


As confirmed by the Commission, the salary history law applies to all employers in New York City, regardless of size. The law is not retroactive; it will not be enforced against actions taken prior to the law's effective date of October 31, 2017.

Like the NYCHRL, the salary history law is silent on jurisdictional reach. Not surprisingly, the Commission has taken an expansive yet non-definitive view and explained the following:

  • If an unlawful inquiry into 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 inquiry into salary history occurs outside of New York City, "there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City."

The Commission further explained that "[e]ntities 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)." This explanation appears to point toward the standard enumerated by the New York State Court of Appeals in Hoffman v. Parade Publications, which held that an impact analysis "confines the protections of the NYCHRL to those who are meant to be protected—those who work in the city," as opposed to "nonresidents who have, at most, tangential contacts with the city."

However, the Commission's FAQs leave open as a prima facie matter whether New York City residents who apply for jobs outside of the city are protected by the law. In such circumstances, New York City residents may enjoy the salary history law's protection outside of the city depending upon the particular circumstances, i.e., whether the impact of the practice is "felt in New York City."

Permissible and Impermissible Inquiries

The Commission's FAQs describe certain scenarios when employers "can and cannot" inquire or learn about an applicant's salary history.

Voluntary Disclosures: The salary history law permits employers to consider an applicant's salary history if the applicant discloses the information "voluntarily and without prompting." The Commission's FAQs emphasize that "[a] disclosure of salary history is 'without prompting' if the average job applicant would not think that the employer encouraged the disclosure based on the overall context and the employer's words or actions."

Job Applications: A job application cannot request information about applicants' compensation histories, even if the employer allows the response to be voluntary. However, employers may include questions on job applications about compensation "expectations or demands."

Multistate Applications: Importantly, the Commission's FAQs state that "an employer who uses a boilerplate application that requests salary history information will not avoid liability simply by adding a disclaimer that individuals in New York City or applying for jobs located in New York City need not answer the question." Multistate employers should therefore ensure that their New York City job application forms conform to the requirements of the salary history law.

Productivity Measures: While the law states that "'[s]alary history' does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports," the Commission's FAQs emphasize that questions about commissions or profits earned are considered prohibited inquiries into salary history. Instead, employers may inquire about the type, value, and structure of deferred or unvested compensation, or the size of an applicant's book of business and profits generated, which are considered "objective indicators of performance."

Competing Offers: The Commission's FAQs state that a prospective employer may ask an applicant about competing offers and counteroffers that the applicant has received and the value of those offers. 

Information Available From Other Sources: According to the Commission's FAQs, employers may not "ask people from the applicant's current or former place of employment or search public records for information about the applicant's salary history." If an employer accidentally uncovers information about an applicant's salary history by, for example, searching publicly available information about the applicant, the employer may not rely upon that information in determining what salary and benefits to offer the applicant.

"Compensation" Is Broadly Defined

The salary history law prohibits employers from relying on salary history to determine an applicant's "salary, benefits, and other compensation." The Commission's FAQs advise that '"benefits' and 'other compensation'" must be read broadly and "may include many factors, including, but not limited to, a car allowance, retirement plan, or bonuses."

Narrow Exemptions

The Commission's FAQs state that there are no exemptions under the law for:

  • actions taken by an employer pursuant to foreign or international law that authorizes the disclosure of salary history or requires knowledge of salary history;
  • private positions for which compensation is set pursuant to procedures established by collective bargaining; or
  • actions taken by headhunters, recruiters, and agents, who also may be held liable if they intentionally aid and abet a violation of the law.

In the context of a corporate acquisition, the Commission's FAQs state that "the employees of the target company are not 'job applicants' for the purposes of the salary history law." But, if employees of the target company must interview with the acquiring company, the FAQ sheet states that the salary history law "may be implicated."

Key Takeaways

In advance of the salary history law's effective date, New York City employers may want to consider taking the following actions:

  • Employers may want to review their job applications (including national applications) to ensure that they not seek or require applicants to disclose their prior salaries, benefits, or other compensation.
  • Employers may want to review their handbook policies and company procedures to ensure that inquiries about applicants' salary histories are prohibited during job interviews and reference checks. For instance, employers can analyze their interview scripts and verify that the focus is on discussions of skills, qualifications, and salary demands and expectations.
  • Any agents, recruiters, or headhunters involved in the recruitment process can be instructed to comply with the law.
  • For open positions, employers may want to consider setting a salary or salary range as part of the job posting prior to interviewing candidates.
  • In the event that an applicant discloses his or her salary history, employers may want to consider obtaining documentation from the applicant that he or she did so voluntarily and unprompted.

We will continue to monitor developments on this legislation and provide further guidance as it becomes available. In addition, our colleagues in California are monitoring a similar salary history law that will take effect as of January 1, 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions