In our April article we discussed the federal circuit split over the interpretation of the Equal Pay Act (EPA) and the growing number of state and local jurisdictions enacting legislation that restricts an employer from inquiring into or using an employee’s salary history.1 Shortly thereafter, on April 5, 2017 the New York City Council passed a bill to amend the New York City Human Rights Law (NYCHRL),2 which will impose similar restrictions on New York City employers. On May 4, 2017, Mayor Bill de Blasio signed the bill, which will become effective on Oct. 31, 2017. Accordingly, Halloween could become a very scary day for New York City employers. In this article, we will review additional recent developments in the law governing employer inquiries into and reliance on the compensation history of prospective employees and analyze the New York City ordinance within this greater context.

Background

The federal Equal Pay Act prohibits employers from paying employees of different sexes different wages for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Under the EPA, one basis on which an employer may justify paying employees of different sexes different wages for equal work is by demonstrating that the wage differential is based on “any other factor other than sex.” Our April article discussed the circuit split on the question of whether an employee’s compensation history is a “factor other than sex.” Just after publication, the U.S. Court of Appeals for the Ninth Circuit issued a decision on April 27, 2017 holding that prior salary can be a “factor other than sex” under the federal Equal Pay Act if the decision to use prior salary was both “reasonable” and “effectuated a business policy.”3 The Ninth Circuit agreed with the Seventh and Eighth circuits and departed from the Sixth, Tenth, and Eleventh circuits.