Columbus has joined Toledo, Cincinnati, and a number of states and locales around the country, in banning employers from asking job applicants about their salary history.
Effective March 1, 2024, covered employers in Ohio’s capital will be prohibited from:
- inquiring about an applicant’s salary history,
- screening applicants based on their salary history,
- relying solely on salary history when deciding whether to offer an applicant employment or determining their compensation, and
- retaliating against applicants for not disclosing their salary history.
Currently, neither the federal Fair Labor Standards Act (FLSA) nor the Equal Pay Act (EPA) prohibit employers from screening applicants based on prior salary, requesting an applicant’s salary history, or conditioning an applicant’s employment on providing their salary history. However, salary history bans, which are intended to eliminate the perpetuation of discriminatory pay disparities, have become increasingly common both at the state and local level. As of April 2023, more than 40 states and localities have adopted some form a salary history ban.
Columbus’ ordinance defines “salary history” as an applicant’s current or prior wages, benefits, and other compensation but excludes, “objective measures of an applicant’s productivity, such as revenue, sales, or other production reports.” The ordinance permits employers to ask about and discuss an applicant’s expectations about salary, benefits, and other compensation, including unvested equity or deferred compensation, so long as the employer does not inquire into the applicant’s salary history when doing so.
Covered Employers and Applicants
The ban applies to all employers with 15 or more employees who work in Columbus; it applies to job placement, referral, and other employment agencies operating on behalf of a covered employer, and to the City of Columbus itself. The ordinance protects all applicants applying for employment in Columbus with a covered employer, regardless of whether the person is ever interviewed. The ban applies to applicants for full- and part-time, temporary, seasonal, contracted, and commissioned work -- in other words, essentially all individuals seeking employment from a covered employer.
Limitations and Exceptions
Unlike Toledo and Cincinnati’s bans, the Columbus ordinance contains no posting requirements and does not require employers to share a position’s pay range with applicants after making a conditional offer of employment.
In addition, the ban does not apply to:
- actions taken by an employer under any federal, state, or local law that specifically authorizes reliance on salary history to determine an employee’s compensation;
- applicants for internal transfer or promotion with their current employer;
- a voluntary and unprompted disclosure of salary history information by an applicant;
- any attempt by an employer to verify an applicant’s disclosure of non-salary-related information or conduct a background check, provided that, if such verification or background check discloses the applicant’s salary history, such disclosure must not be solely relied on in determining the salary, benefits, or other compensation of such applicant during the hiring process, including the negotiation of a contract;
- applicants who are re-hired by the employer within three years of the applicant’s most recent date of termination of employment by the employer, as long as the employer already has past salary history data about the applicant from their previous employment;
- positions for which salary, benefits, or other compensation are determined by procedures established by collective bargaining; and
- federal, state, and local governmental employers, other than the City of Columbus.
Under the ban, an applicant may file a complaint with the Columbus Community Relations Commission within six months of an alleged violation. The Commission will then investigate the complaint, and, if it finds a reasonable basis to believe a violation has occurred, attempt to eliminate the employer’s unlawful practices by informal methods. If such efforts fail, the Commission may impose civil penalties on the employer of up to $5,000 depending on the number of violations. The ordinance does not provide a private cause of action.
Guidance for Employers
Columbus employers should evaluate their employment applications and hiring practices with the assistance of legal counsel to ensure compliance with the city’s salary history ban before it takes effect in March 2024. In addition, with the increasing number of salary history bans across the country and the rise of remote work, all employers should be aware of pay equity and transparency laws in other locations where they operate or have employees and, as necessary, take steps to ensure compliance.
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- Member of the Firm