[co-author: Corben Green - Law Clerk]

On November 20, 2018, Suffolk County, New York’s Legislature passed the Restricting Information on Salaries and Earnings Act (“RISE Act” or “Act”). With limited exceptions, the Act will prohibit employers in Suffolk County with four or more employees from inquiring about or relying on a job applicant’s compensation history at any stage during the hiring process. Sponsored by County Executive Steve Bellone, the RISE Act amends the Suffolk County Human Rights Law. The Act will become effective on June 30, 2019.

With the passage of the RISE Act, Suffolk County joins Westchester County, Albany County, New York City, and other jurisdictions across the country (including California, Connecticut, Delaware, Massachusetts, Oregon, and Vermont) in prohibiting employers from inquiring into a job candidate’s salary history. Similar to the stated intent of these other jurisdictions’ salary history inquiry bans, the Suffolk County Legislature asserts that the measure is necessary to help reduce pay inequity between white men and their female and minority counterparts. According to data from the New York State Department of Labor, women in Suffolk County earn 78.1 percent of what their male counterparts earn, a figure well below the statewide average of 86.8 percent. The wage gap for women of color in New York State overall is even wider—African-American women earn 64.4 percent, and Latino women earn 55.3 percent, of what white men earn.

Conduct Prohibited by the RISE Act

Under the Act, it will be unlawful for a covered employer, employment agency, or any employee or agent thereof:

• to inquire,[1] whether on an application form “or otherwise,” about a job applicant’s wage or salary history (this prohibition applies to, but is not limited to, compensation and benefits), or
• to rely on an applicant’s salary history in setting the candidate’s wage or salary amount at any stage in the employment process, including the offer or contract.

Limited Exceptions to the Salary Inquiry Ban

The RISE Act restrictions do not apply to otherwise-covered entities or their agents when those entities are required or permitted to make such salary history inquiries under federal, state, or local law. Further, the Act excludes employers that have the right to ask applicants about their wage history pursuant to a collective bargaining agreement.

Notably, the RISE Act, in its brevity, does not expressly address a number of exemptions provided for under some other jurisdictions’ salary history inquiry bans. For example, New York City’s law explicitly allows an employer to (i) rely on salary history when a candidate voluntarily discloses that information, (ii) verify such voluntarily disclosed compensation information, (iii) discuss the applicant’s salary and benefits expectations, (iv) inquire as to any unvested equity or deferred compensation the applicant would lose by leaving his or her current position, and (v) make salary history inquiries of current employees when they seek an internal transfer or promotion.

Penalties for Violations

As an amendment to the Suffolk County Human Rights Law, the RISE Act follows that law’s penalties for violations. Thus, employers that violate the Act may be liable for compensatory damages to the wronged individual, as well as civil penalties of up to $50,000, or up to $100,000 when the Suffolk County Human Rights Commission (“Commission”) determines that the violation was willful, wanton, or malicious. The Commission may allow employers with fewer than 50 employees to pay assessed penalties in installments.

What Suffolk County Employers Should Do Now

Before the Act becomes effective on June 30, 2019, Suffolk County employers should do the following:

• Review employment applications to ensure that they do not contain inquiries concerning the applicant’s current salary, wage history, benefits, or other compensation.
• Train in-house recruiters and interviewers on the Act’s prohibitions and on how to avoid improper questions throughout the hiring process.
• Ensure that third parties, such as employment agencies and external recruiters, are aware of the Act’s prohibitions and are taking appropriate measures to comply with the Act.
• Unless and until the Commission issues clarification on whether an employer may rely on an applicant’s voluntary disclosure of salary history or expectations when setting compensation, do not take any such volunteered information into consideration. In this regard, consider having in place established compensation levels or ranges for all job categories.

ENDNOTE