Our clients often ask if the law prohibits an employer from requesting salary history from a job applicant. Until recently, there was no such law in the state of Ohio to prohibit this type of request. However, on March 13, 2019, the City of Cincinnati adopted Ordinance 83-2019, entitled “Prohibited Salary History Inquiry and Use.” According to the ordinance, the law aims to ensure Cincinnati residents’ “rights are protected and that job applicants in Cincinnati are offered employment positions and subsequently compensated based on their job responsibilities and level of experience, rather than on prior salary histories…”
In general, the ordinance makes it “an unlawful discriminatory practice” for an employer to ask about the salary history of an applicant for employment or to screen job applicants based on their “current or prior wages, benefits, other compensation, or salary histories.” In addition, the ordinance requires employers to provide pay scale information for a position upon request to an applicant after the employer has made an offer of employment. Notably, the law does not prohibit employers from discussing salary expectations with applicants as part of the interview process. The ordinance further establishes a Salary History Implementation Working Group. This group is charged with assisting and advising Cincinnati employers on the impact and implementation of the new law.
The ordinance contains several exceptions and situations where the law does not apply. These include instances where an applicant voluntarily and unprompted discloses their salary history to the prospective employer. The law further does not affect an employer’s ability to conduct a background check or to verify other aspects of the applicant’s non-salary related job history (e.g. reference checks). The law also does not apply to internal transfers or promotions, or in cases where federal law allows employers to consider salary.
There are no penalties or fines associated with violating the ordinance, signaling that the City is not interested in enforcement activities. However, applicants can bring lawsuits against Cincinnati employers who impermissibly consider salary history in violation of the law for compensatory damages within two years of the violation.
The ordinance mirrors several similar pieces of legislation in other jurisdictions such as Maine, New York, and California which aim to limit the factors which employers may consider when making hiring decisions.
Employers within the City of Cincinnati are encouraged to review their hiring policies and discuss the new law with hiring managers. Employers are further encouraged to watch for recommendations and implementation guidance from the working group established by the City Council. The law becomes effective March 13, 2020.
This new law is a further example of a recent trend where employers are being limited in what they can consider when making hiring decisions. For example, many states have enacted so called “Ban the Box” laws prohibiting employers from inquiring or considering an applicant’s criminal background and arrest record. Ohio recently enacted such a law that applies to public employers. Moreover, the Equal Employment Opportunity Commission expects all employers to give virtually no consideration in the hiring process to arrests without convictions and to avoid automatic disqualification of applicants with criminal convictions.
If you are an employer in the City of Cincinnati and need help incorporating this new law into your hiring practices or simply need a review of your hiring practices, contact Fishel Downey. We regularly provide training to employers and HR teams to ensure adherence to the changing employment laws.