Cincinnati Passes Ban on Asking for Salary History

Add Cincinnati to the list of cities that have banned questions about salary history, with the idea that doing so perpetuates pay inequality.

Add the city of Cincinnati to the locations looking to improve the wage gap by limiting how much employers can ask about past compensation.

The Cincinnati City Council voted on March 13 to forbid employers from asking job applicants for their salary history. The move is aimed at reducing wage disparities for women, minorities and the LGBTQ community. It’s been widely reported that women and communities of color make less than white males. Proponents say that basing a worker’s salary offer on a wage from a previous job perpetuates wage inequality.

The move is aimed at reducing wage disparities for women, minorities and the LGBTQ community.

“[W]ages should be based on job responsibilities and level of experience of the applicant rather than wages earned from prior employment,” according to the language of the ordinance.

The ordinance applies to employers located within Cincinnati’s city limits that have 15 or more employees and takes effect in about one year.

The ordinance was signed by Mayor John Cranley the same day it received City Council approval.

New requirements for employers

Under the new ordinance, employers are not allowed to ask job applicants about salary history, to screen job applicants based on prior salary history, to rely on salary history to make hiring decisions or set an applicant’s compensation for a job; or refuse to hire a job applicant for not disclosing their salary.

The ordinance applies to employers located within Cincinnati’s city limits that have 15 or more employees and takes effect in about one year.

However, the ordinance does allow employers to ask job applicants for their expectations regarding salary, benefits and other compensation. In addition, the ordinance requires employers to provide the pay scale for the position in instances where a job applicant has received a conditional job offer from the employer.

The city ordinance creates a private right of action — providing private parties or individuals to bring a lawsuit forward — but doesn’t carry criminal penalties. The statute of limitations for bringing claims against employers will be two years.

To ease employer implementation of the new ordinance, Cincinnati’s City Council will establish a “Salary History Implementation Working Group,” chaired by the City Manager, to assist and advise affected employers.

Opposition

Some Republicans and business groups had opposed the ordinance.

The 6-2 vote in favor of the measure was along party lines with Democrats voting for the ordinance and the council’s two Republican members voting against it, according to the Cincinnati Business Courier.

The Cincinnati USA Regional Chamber has opposed the ordinance and issued a statement warning it could result in legal issues for the city since a similar ordinance has resulted in a protracted legal fight.

“The Cincinnati USA Regional Chamber and its members support wage equity and policy changes to achieve it. Wage equity is a community goal that requires community collaboration. The Chamber stands strongly committed to advancing policies and projects that productively advance this objective.

“Our largest concern with this ordinance lies with the federal lawsuit filed in Philadelphia over a nearly identical ordinance. The district court struck down a portion of the ordinance as an unconstitutional violation of business’ First Amendment free speech protection. We are concerned about the legal liability this presents to the city.

“We remain concerned about the constitutionality of the ordinance, and, while the overall objective is laudable, we do not think this ordinance is the best approach to tackle a complex problem,” Katie Eagan, vice president of Government Affairs for the Cincinnati Chamber, said in a statement.

Growing number of salary history bans

Cincinnati joins a growing number of localities and states that have implemented salary history bans. Presently there are 13 statewide bans and 11 local bans on the books. California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Massachusetts, New Jersey, New York state, Oregon, and Pennsylvania have salary history bans in place, but some of those apply only to government employers.

Several local governments, including Albany County, Atlanta, Louisville, KY; New York City, San Francisco, New Orleans, and Pittsburgh also passed their own bans, but some of those are only aimed at city government employers.

But there’s been a backlash. In employer-friendly moves, Michigan and Wisconsin lawmakers recently passed laws prohibiting bans on the salary question.

There is no nationwide salary history ban in effect; however, Capitol Hill lawmakers are considering a bill that would create such a prohibition. “The Paycheck Fairness Act” would, among other things, ban employers from seeking a job candidate’s salary history.

Some courts have also weighed in on the issue. Last year, the Ninth Circuit Court of Appeals ruled that it’s a violation of the Equal Pay Act for businesses to consider a job candidate’s past wages when putting together a salary offer. That decision affects workers who live in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.

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