“I was asked about my salary history at a job interview. Is that OK?”

February 15, 2018

Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

Whether a prospective employer can inquire about salary history in a job interview depends on several factors. In his first official act as Governor of New Jersey, Phil Murphy signed an Executive Order effective February 1, 2018, prohibiting State entities from asking employment applicants about their current or prior salaries unless a conditional offer of employment has been made. An applicant can volunteer the information, but, if the applicant refuses to do so, the refusal cannot be considered in employment decisions. Although the Executive Order only covers State agencies, it could potentially apply to more job seekers if the Legislature presents the Governor with a bill extending its protections to private businesses.

Through this Executive Order, New Jersey joins other jurisdictions, states and cities, seeking to protect workers from gender-based pay disparity and to promote that workers be compensated based on their work and the services they provide, regardless of gender. In May 2017, New York City became the first municipality in the nation to enforce a salary history ban, when The Hon. Mayor Bill de Blasio signed Intro. 1253, expanding an Executive Order of November 2016 to include both private and public employers in the prohibition against inquiring about salary history during the hiring process. “It is unacceptable that we’re still fighting for equal pay for equal work. The simple fact is that women and people of color are frequently paid less for the same work as their white, male counterparts”, said Mayor De Blasio.

New York Labor Law Section 194 makes it unlawful for an employer to pay an employee less than an employee of the opposite sex for equal work when the performance of the job requires equal skill, effort and responsibility, and is performed under similar working conditions. Some exceptions to this rule are when the wage differential is based on a seniority system, merit system, measuring earnings based on production, or a genuine factor other than sex, such as education, training, or experience.

Federal law prohibits employers from discriminating against an individual with respect to pay, benefits or terms and conditions of employment because of the person’s sex.  Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual’s sex. Title VII claims must be filed with the US Equal Employment Opportunity Commission (EEOC) before they can be brought in court. The Equal Pay Act of 1963 (EPA) prohibits discrimination in compensation based on sex and claims can be filed either with the EEOC or directly with the court. Under the EPA, equal work means jobs requiring equal skill, effort and responsibility and performed under similar working conditions.

New Jersey laws protect against employment discrimination based on an individual’s sex. The Law Against Discrimination (LAD) protects against gender-based wage disparity and claims can be filed with the New Jersey Division on Civil Rights (NJDCR) or directly in court. Another State law, N.J.S.A. 34:11-56.1 et.seq., prohibits employers from discriminating in the payment of wages to employees because of gender. Claims may be filed with the New Jersey Department of Labor and Workforce Development (NJDLWD) or directly in court.

If you are asked about your current or previous salary at a job interview for a State entity in New Jersey, when a conditional job offer has not been made, you do not need to provide the information. You have a right to be considered for the salary you believe you deserve. While a violation of the Executive Order does not create a private right of action, if you believe a prospective employer has violated Gov. Murphy’s Executive Order promoting equal pay and gender equity, you may report the violation to the Governor’s Office of Employee Relations, which shall investigate the matter and take appropriate measures.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.