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By: Bill Buechner, Jr.
On March 13, 2019, the City of Cincinnati, Ohio adopted an ordinance prohibiting employers within the City of Cincinnati with 15 or more employees from inquiring about an applicant’s salary history (current or prior wage, benefits or other compensation) either on an application or during an interview. The ordinance also prohibits employers from relying on the salary history of an applicant in deciding whether to offer employment to an applicant or to determine the salary, benefits or other compensation for the applicant during the hiring process. The ordinance does not apply to any unit of local, state, or federal government except for the City of Cincinnati. The ordinance becomes effective in March 2020.
The City of Cincinnati’s adoption of its salary history ban is just the latest in an emerging trend of states and local governments prohibiting inquiries into the salary history of applicants. Since the beginning of 2019 alone, bans on inquiries into an applicant’s salary history have either been adopted or taken effect in Connecticut, Hawaii, Illinois, Michigan, the City of Atlanta and now the City of Cincinnati. A total of 11 states, Puerto Rico and 12 local governments have adopted some version of a ban on inquiries into an applicant’s salary history. Some bans apply only to city or state departments or agencies (New York, New Jersey, Illinois, Michigan, Pennsylvania, Atlanta, Chicago, Louisville, New Orleans, Kansas City and Pittsburgh), whereas other bans apply to public and private employers alike (California, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Puerto Rico, San Francisco, New York City, Philadelphia, Albany County NY, Suffolk County NY and Westchester County NY). Some bans prohibit not only inquiries into salary history, but also reliance on any salary information inadvertently obtained (including information voluntarily provided by the applicant), whereas other bans only prohibit inquiries into salary history. Some bans have been adopted via statute, ordinance or resolution, whereas other bans have been adopted via an executive order. The purpose of these bans is to eliminate the cycle of pay discrimination on the basis of sex that may be perpetuated by employers’ reliance on an applicant’s salary history either in making hiring decisions or pay decisions for new hires.
Bucking the trend outlined above, Michigan and Wisconsin passed statutes that went into effect in 2018 prohibiting local governments from adopting salary history bans. Also, a federal judge issued an injunction in 2018 enjoining enforcement of Philadelphia’s ban on inquiries into the salary history of applicants on First Amendment grounds. That decision, however, upheld Philadelphia’s prohibition against employers relying on an applicant’s salary history information in making hiring and pay decisions.
Each salary history ban has its own nuances and exceptions. Accordingly, employers with operations in a jurisdiction that has adopted a salary history ban in some form should consult with their employment counsel concerning what conduct is prohibited and modify their application, interviewing, hiring and pay practices as needed. Employers with operations in multiple jurisdictions (some of which may have a salary history ban) should consider whether it is prudent to follow one set of rules in jurisdictions that have adopted a salary history ban and another set of rules in jurisdictions that have not, or whether it makes more sense to adopt a uniform practice throughout the organization not to inquire about or rely on an applicant’s salary history in making hiring and pay decisions.
If you have any questions or would like more information, please contact Bill Buechner at [email protected].