By: Joel A. Klarreich, Esq. and Jason B. Klimpl, Esq.
On April 5, 2017, in an effort to narrow the gender wage gap, the New York City Council passed legislation that will make it an unlawful discriminatory practice for private employers, including staffing firms, and employment agencies (recruiting firms) to inquire about an applicant’s or prospective employee’s salary history (i.e., current or prior wages, benefits or other compensation) or rely on an applicant’s or prospective employee’s salary history in determining such person’s compensation during the hiring process, including the negotiation of an employment agreement. As a result of the efforts of the New York Staffing Association (NYSA), the original bill was amended to provide that these restrictions do not extend to any objective measures of productivity such as revenue, sales or other reports, as the law specifically excludes such measures from the definition of salary history, which will help to ameliorate the impact of the restrictions on staffing firms and other employers when hiring and placing sales persons or other individuals where productivity or performance is relevant. NYSA anticipates working with the City Council and Commission on Human Rights to provide additional flexibility to employers, including staffing firms, and employment agencies to verify the compensation history of performance-based prospective employees, such as those who had been paid on a commission basis.
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