Salary History Questions in Hiring: What Employers Need to Know
You are sitting in your office in DUMBO or Williamsburg, looking at a resume that seems too good to be true. The candidate is sharp, experienced, and perfect for the role. Naturally, you want to know if you can afford them. You lean forward and ask, “So, what were you making at your last job?”
Stop. If you ask that question in New York, you might have just handed that applicant a lawsuit against your company.
I have seen it happen too many times. Good business owners in Brooklyn get tripped up by New York’s aggressive labor laws because they rely on “old school” hiring tactics. The rules have changed. New York labor laws have made the “salary history” question a dangerous trap for employers.
You need to know precisely where the line is drawn. As an employment lawyer, I am here to explain what you can and cannot ask, and how to protect your business from a discrimination claim.
The “Salary History Ban” Explained
New York State (and New York City specifically) operates under a strict “salary history ban.” The logic from the state is simple: if an applicant was underpaid in the past because of their gender or race, using that old salary to set their new pay just perpetuates the discrimination.
Under New York Labor Law Section 194-a, it is illegal for an employer to:
- Orally or in writing, request, seek, or enquire about an applicant’s salary history
- Rely on salary history to determine whether to offer employment
- Rely on salary history to determine the wages or salary you offer
- Retaliate against an applicant who refuses to disclose their pay history
These laws apply to the interview. You also cannot ask their former employer for this information during a reference check or search public records to find it. If you are hiring in Brooklyn, you are likely also subject to the NYC Human Rights Law, which enforces these bans aggressively.
The Forbidden Questions
To keep yourself out of court, you must scrub your interview process of any inquiry that sniffs around past earnings, including those questions that pertain to benefits.
Do not ask:
- What is your current salary?
- Can you provide a W-2 to verify your employment?
- What was your bonus structure at your last firm?
- How much did you make in commissions last year?
Even an “optional” question on a job application is a violation. If your standard application form includes a “previous salary” field, delete it immediately.
What You ARE Allowed to Ask
You might be thinking, “Vinny, how am I supposed to negotiate if I don’t know their numbers?”
The law does not ban negotiation; it bans using past numbers to dictate future value. You are allowed to ask about expectations.
You can safely ask applicants questions about their salary expectations for the role, the salary range, and whether your salary offer aligns with their needs.
You may also request objective performance indicators, provided you do not enquire about the specific monetary value of their personal compensation. For example, if you are hiring a sales rep, you can ask about the size of their book of business or their revenue volume. You just cannot ask what their cut of that revenue was.
The “Voluntary Disclosure” Trap
Here is a common scenario: You follow the rules and don’t ask questions that could create legal issues. But five minutes into the interview, the applicant blurted out, “I’m currently making $95,000, so I’d need at least $105,000 to move.”
Did you just break the law? No. If the applicant discloses their salary history voluntarily and without prompting, you are in the clear.
But be careful. New York Labor Law allows you to verify that information only under specific conditions. You cannot say, “Oh, really? Can you show me a pay stub to prove that?” unless you have already made an offer of employment with compensation, and they are using their old salary to negotiate a higher number.
My advice? If they volunteer it, note it, but try to pivot back to the market value of the role you are filling. Do not let their past salary be the only anchor for your offer.
Why This Matters for Brooklyn Businesses
Brooklyn is a hub for innovation, from tech startups in the Navy Yard to creative agencies in Bushwick. The talent pool here is competitive, but so is the legal environment.
New York courts do not accept ignorance as a defense. If you are a small business owner, a single lawsuit from the NYC Commission on Human Rights or a private civil action can be devastating. They can assess damages and fines and require you to update your training manuals (which you should have already done).
You need to be proactive to protect your business. Train your hiring managers and update your handbooks. Make sure everyone who interviews a candidate knows that “What did you make?” is a forbidden phrase.
Protect Your Business with Strong Legal Counsel
Employment law in New York is a minefield. The state is continually adding new protections for employees, and if you are not paying attention, you will inadvertently violate a labor law.
I built my firm on the principle of aggressive, informed representation. I don’t just read the law; I use it to shield my clients from liability. Whether you are dealing with a hiring compliance issue, a wage dispute, or a Department of Labor audit, you need a team that knows how to fight back.
The Law Office of Vincent Miletti, Esq, is based in Brooklyn and knows how these statutes play out in local courts. Do not wait until you receive a complaint to improve your hiring process.
Call us today at 314-648-2586. Let’s make sure your business is compliant and secure.
