OVERVIEW

In an effort to close the wage gap that exists between male and female employees, a number of states and major cities have recently adopted wage equity and salary history laws. According to the Bureau of Labor Statistics, in 2016, the average female employee earned 80 cents for every dollar a man received during the same period. Statistics suggest the gap may be even greater for ethnic or racial minority employees. When applicable, employers must comply with their state and local laws in addition to the Federal Equal Pay Act. When both federal and local laws differ, the law that provides the greater protection or benefit to the employee applies.

ACTION STEPS FOR EMPLOYERS

Affected employers should:

  • Eliminate prohibited salary history inquiries.
  • Update job applications and other employment forms to comply with pay equity laws.
  • Train recruiters and hiring managers regarding applicable pay equity laws.

 

State Laws

New York City

Effective date: Oct. 1, 2017

An amendment to the New York City Human Rights Law prohibits employers from inquiring into a candidate’s salary history as an unlawful discriminatory practice.

Covered Employers: New York City employers and employment agencies with four or more employees. Individuals employed by a parent, spouse or child, and individuals engaged in domestic service are not considered employees under this amendment.

Covered Individuals: Candidates and new hires during the hiring process, except internal transfers or promotions, when public employees’ salaries are determined by collective bargaining or when disclosure of salary history is mandated by law.

Requirements: A covered employer is prohibited from inquiring about or relying on a candidate’s salary history when determining a salary offer.

Oregon

Effective dates: Salary inquiries Oct. 1, 2017

Protected classes and posting requirements Jan. 1, 2019

In addition to prohibiting salary history inquiries, the Oregon Equal Pay Act of 2017 extends pay equity protections to nine additional protected classes.

Covered Employers: All Oregon employers.

Covered Individuals: All Oregon job applicants.

Requirements: Effective Oct. 1, 2017, employers are prohibited from inquiring about an applicant’s salary history. Effective Jan. 1, 2019, employees who perform comparable work cannot be paid different pay rates based on race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

Delaware

Effective date: Dec. 1, 2017

An amendment to Title 19 of the Delaware Code prohibits employers from asking a candidate’s compensation history during the interview process.

Covered Employers: All Delaware employers and hiring agencies.

Covered Individuals: All Delaware job candidates.

Requirements: Employers are prohibited from making inquiries concerning a candidate’s compensation history, using that history to screen candidates or requiring that prior compensation satisfy minimum or maximum criteria.

Massachusetts

Effective date: July 1, 2018

The Pay Equity Act addresses equal pay for comparable work, allowable variations in wages, pay secrecy policies and using salary history in the hiring process.

Covered Employers: All Massachusetts employers.

Covered Individuals: All Massachusetts employees and candidates.

Requirements: Employers are prohibited from inquiring about or relying on a candidate’s salary history during the hiring process.

San Francisco

Effective date: July 1, 2018

The Parity in Pay Ordinance prohibits employers from making inquiries concerning a job applicant’s salary history.

Covered Employers: San Francisco employers, those contracting with the city and their agents.

Covered Individuals: All job applicants, including temporary or seasonal workers.

Requirements: Employers are prohibited from asking an applicant’s salary history. Salary history may not be considered in the hiring process or when determining a salary offer. Employers are prohibited from disclosing a current or former employee’s salary history without prior authorization, unless the information is publicly available.

 

Applicable Federal Laws

In addition to the state and local laws mentioned above, employers should be aware of the following federal laws that regulate employment discrimination and other aspects of the hiring and employment processes.

Equal Pay Act

The Equal Pay Act (EPA) requires that men and women receive equal pay for equal work.

Covered Employers and Employees: Virtually all employers and employees.

Requirements: Employers are required to pay equal pay for equal work, regardless of gender. Men and woman in substantially equal jobs, those requiring equal skill, effort, and responsibility and performed under similar conditions at the same workplace, must be paid equally.

Title VII, ADEA, ADA

Title VII, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) prohibit compensation discrimination based on race, color, religion, sex, national origin, age or disability. There is no requirement that the jobs be substantially equal.

Covered Employers and Employees: Title VII and ADA, all employers with 15 or more employees. ADEA, all employers with 20 or more employees.

Executive Order 11246

Executive Order 11246 prohibits discrimination in employment decisions based on race, color, religion, sex, sexual orientation, gender identity or national origin.

Covered Employers and Employees: Federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in government business in one year.