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Salary History is History in New York

Google “salary history” and you’ll see that nobody loves the question: “What were you making in your previous position?” The good news is that a question about salary history is history in New York State. At the beginning of 2020, New York State Labor Law was amended to prohibit employers from asking the question.

Specifically, employers in New York State may not ask in any manner, during a job interview or otherwise, (viz., in writing, face-to-face, or through an agent) any information about previous compensation and benefits. If the job applicant or employee voluntarily offers the information, the employer is prohibited from relying on that information to determine whether to offer the job or what salary to offer. Current employees who are up for promotion are also protected from the salary history question, although a current employer is allowed to rely on information already in its possession.

Additionally, applicants are encouraged to contact the New York State Department of Labor’s Division of Labor Standards if they believe they have been retaliated against for refusing to provide salary history information in response to a request for it. (From a practical standpoint, if you want the job, it’s wise to have a tactful response ready for salary history inquiries. There are lots of articles online with ideas about how to navigate that situation.)

If you’re faced with a salary history conundrum, speak to an attorney in your jurisdiction to ensure you get the most up-to-date and relevant information.

There are a lot of things to be nervous about in a job application, but in the State of New York, the Salary History Question is not one of them.

Do I have to disclose an ACD on my NY job application?

Earlier this year a client asked me, “Do I have to disclose an ACD on my New York job application?” The client was looking for a new job after having been arrested. Understandably, he had a lot of questions about how the arrest and possible conviction were going to impact his future job prospects. Long story short, the criminal matter (for which I did not provide representation, as I am not a criminal defense specialist), was resolved with an adjournment in contemplation of dismissal [“ACD”] – which provides for a full dismissal of the charges following a period of time, usually six months, as long as the defendant does not get arrested again during the adjournment period.

The client then posed the question: “Do I have to disclose the ACD on my job application?”

Excellent question.

Here’s how an ACD is treated in New York State in the context of finding a job. [Please note that New York City has different rules. Call an attorney if you’re not sure how to respond to employment questions about arrests!]

New York Executive Law §296.16 was amended in 2019 to provide that job applicants are not required to disclose information about an arrest that was followed by an ACD. However, an ACD is likely to show up on a pre-employment background check until the terms have been satisfied. If the applicant has exercised their right not to disclose, a prospective employer may assume the applicant is being dishonest and trying to cover up the arrest. Luckily, the New York law prohibits employers from taking an adverse action because of an ACD. Unluckily, employers may not be aware of this prohibition.

In this catch-22 situation, it is a very good idea to contact the New York State Division of Human rights, or a New York workers’ rights attorney, or both. After we talked, my client knew his rights as he went through the application process. I am happy to report that he got the job.

Always contact a workers’ rights attorney in your jurisdiction if you are concerned about how an arrest might affect your employment.

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