NYC Outlaws Salary Inquires

New York City Bans Employers' Inquiries Into and Use of Salary History is an interesting June 6, 2017 article from the New York Law Journal which discusses a NYC Local that that is effective Oct. 31, 2017. The article describes the law in part as follows:

Like the Philadelphia ordinance, New York City's ordinance provides that employers may not "inquire about" or "rely on" a prospective employee's salary history. See N.Y.C. Admin. Code §§8-107(25)(b)(1)-(2). Although the new law speaks in terms of "salary history," it defines "salary history" broadly to "include[] the applicant's current or prior wage, benefits or other compensation," but explicitly excludes "any objective measure of the applicant's productivity such as revenue, sales, or other production reports." Id. §8-107(25)(a). Making an "inquiry" is defined broadly as "communicat[ing] any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history." Id. The law's definition of "inquiry" also includes "[conducting] a search of publicly available records or reports for the purpose of obtaining an applicant's salary history." Id.
This prohibition does not extend to "informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range," which is expressly excluded from the definition of "inquiry." Id. Additionally, employers may "engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation," which includes discussion of "unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant's resignation from their current employer." Id. §8-107(25)(c).
Furthermore, employers may not "rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant." Id. §8-107(25)(b)(2). This prohibition applies "during the hiring process, including the negotiation of a contract." Id. This prohibition is not absolute. The law contains a carve-out permitting an employer to use a prospective employee's wage history in determining his or her compensation in circumstances where the prospective employee offers the information "voluntarily and without prompting." See §8-107(25)(d). In such a case, the employer may verify the salary information provided by the prospective employee. Id. However, the law does not define what constitutes "voluntarily," thus leaving open the possibility of subsequent challenges as to whether any purported consent was truly "voluntary."