On January 6, 2020, New York State's salary history ban became effective. Under this new law, employers may not ask a job applicant, or anyone else, for any information concerning an applicant's salary history. Moreover, salary history may not be used to decide whether to interview an applicant, whether to offer the applicant the job, or what salary to offer.

In order to help employers bring their practices into compliance with the new law, New York State released a Q&A style guidance clarifying several important aspects of the law. First, the guidance helpfully defines the term "applicant" as "someone who took an affirmative step to seek employment with the employer and who is not currently employed with that employer," including part-time, seasonal, and temporary workers, regardless of immigration status. If an applicant is currently employed by the employer, the employer may consider salary history information already in its possession, however, the employer still may not ask about the applicant's previous pay from other jobs.

The guidance also clarifies that an applicant may voluntarily disclose salary information to a prospective employer, so long as the disclosure comes without any prompting from the employer. In the event an applicant does voluntarily disclose salary information, the employer may consider that information when deciding what salary to offer the applicant. Note, though, that employers may not attempt to pose an “optional” salary history question on a job application to circumvent the law.

All New York employers should review their job applications and onboarding processes, and train hiring personnel, to ensure compliance. As the guidance suggests, employers must eliminate questions about past salary from all job applications and even consider proactively stating in job postings that the company does not seek salary history information from job applicants.