DON’T ASK! Suffolk County, New York, becomes latest jurisdiction prohibiting employers from asking applicants about wage or salary history

January 21, 2019

Employment Law Alert

Author(s): Christopher G. Gegwich

In what has become a national trend, Suffolk County, New York, is one of the latest jurisdictions to ban employers and employment agencies from inquiring into an applicant’s salary and benefits history or utilizing such information in setting an applicant’s or employee’s compensation.

Late last fall, the Suffolk County Legislature unanimously passed the Local Law to Restrict Information Regarding Salary and Earnings (“RISE”) Act,[1] which makes it unlawful for Suffolk County employers and employment agencies with four or more employees to make verbal or written inquiries about a job applicant’s wage or salary history. According to the legislative history, RISE is designed to “break the cycle of wage discrimination and close the wage gap” that has historically impacted women and racial and ethnic minorities.

Beginning June 30, 2019, it will be considered an “unlawful discriminatory practice” under the Suffolk County Human Rights Law for covered employers and employment agencies, as well as their agents and employees, to inquire about, or rely upon, an applicant’s prior or current salary information when setting compensation for an employee at any stage in the employment process. Notably, RISE appears to apply not only to the setting of initial compensation, but also to compensation decisions later in the employment relationship.

“Salary history” includes current or prior wages, including compensation and benefits. Under RISE, unlawful inquiries include verbal or written requests to the applicant or his or her former employer, and searches of publicly available records or reports. Notably, however, RISE allows employers to disclose and verify an applicant’s salary history when such disclosure or verification is required under federal, state or local law. RISE also does not apply to the exercise of any right of an employer or employee pursuant to a collective bargaining agreement.

An aggrieved individual may file an administrative complaint with the Suffolk County Human Rights Commission. If a covered employer or employment agency fails to comply with RISE, it may be subject to civil penalties of up to $50,000, or up to $100,000 if the violation is “willful, wanton or malicious.” A covered employer or employment agency may also be subject to a civil action by the applicant or employee. If found liable in a civil action, the employer could potentially be responsible for compensatory damages, back pay, attorneys’ fees and costs.

Employers operating in Suffolk County, New York, should review their hiring procedures and pre-employment policies and practices to ensure that they are not violating RISE and exposing themselves to civil penalties and potential litigation. In addition, managers, supervisors and other employees who interview or make hiring decisions should be trained on the restrictions on making salary inquiries to ensure compliance with RISE.

  1. Suffolk County Code § 528-7(13).
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