The City of Columbus, Ohio, recently passed an ordinance prohibiting employers from inquiring about a job applicant’s salary history during the hiring process. Joining Cincinnati and Toledo, Columbus became the third city in Ohio to enact a salary history ban. The ordinance will become effective on March 1, 2024, allowing employers ample time to become familiar with the new restrictions.
The purpose of the Columbus ordinance is to promote pay equity for women, particularly women of color. For this reason, the ordinance makes it an unlawful discriminatory practice to:
- Inquire about the salary history of a job applicant;
- Screen job applicants based on their prior wages, benefits, other compensation, or salary history, including requiring that a job applicant’s prior wages or salary history satisfy a minimum or maximum criteria;
- Rely solely on the salary history of a job applicant in making hiring decisions or in determining compensation; and/or
- Refuse to hire or otherwise disfavor, injure, or retaliate against an applicant for not disclosing salary history.
According to the text of the ordinance, the above unlawful discriminatory practices, "can, if used, perpetuate issues of systematic discrimination related to the wage gap and wealth gap for women, especially women of color."
The ordinance covers all employers within Columbus’ city limits that have 15 or more employees, including job placement and referral agencies. In addition, the ordinance covers all job applicants applying for employment to be performed within Columbus and whose applications will be solicited, received, possessed, or considered, in whole or in part, in Columbus.
Notwithstanding the above restrictions, Columbus employers are permitted to ask applicants about their salary expectations and inquire about objective measures, such as productivity. Furthermore, the prohibitions do not apply to:
- actions taken by an employer pursuant to a federal, state, or local law that authorizes the reliance on salary history to determine an employee’s compensation;
- applicants for internal transfer or promotion with their current employer;
- voluntary and unprompted disclosure of salary history information by the job applicant;
- an attempt by an employer to conduct a background check involving non-salary related information, provided that, if such check reveals salary history, the salary history information shall not be solely relied upon for purposes of determining compensation of a job applicant during the hiring process;
- applicants who are re-hired by the employer within three years, provided that the employer already has past salary history data;
- employee positions for which compensation is determined pursuant to procedures established by collective bargaining; and
- federal, state, and local governmental employers, other than the City of Columbus.
The Columbus Community Relations Commission will be responsible for enforcing the ordinance. Penalties for any violations of the ordinance will range from $1,000 - $5,000.
Both Cincinnati and Toledo have previously enacted similar salary history bans. In fact, Cincinnati was the first city in Ohio to enact this type of ban. See Cincinnati Municipal Code § 804; see also Cincinnati Ordinance No. 83-2019. The Cincinnati ordinance became effective on April 12, 2020, and covers employers, including employment agencies, who are located in Cincinnati and employ 15 or more employees in Cincinnati. Covered job applicants include individuals applying for employment to be performed in Cincinnati and those whose application, in whole or in part, will be solicited, received, processed, or considered in Cincinnati, regardless of whether the applicant is interviewed. Moreover, Cincinnati employers are prohibited from inquiring, screening, relying on an applicant’s compensation history, or refusing to hire or retaliating against an applicant for not disclosing his or her salary history, but they are permitted to discuss an applicant’s
compensation expectations.
Likewise, Toledo enacted the Pay Equity Act to Prohibit the Inquiry and Use of Salary History in Hiring Practices. See Toledo Municipal Code § 768; see also Toledo Ordinance No. 173-19. The Act took effect on August 4, 2020, and similarly covers employers, including employment agencies, who are located in Toledo and employ 15 or more employees in Toledo. Covered job applicants include individuals applying for employment to be performed in Toledo and whose application, in whole or in part, will be solicited, received, processed, or considered in Toledo, regardless of whether the applicant is interviewed. Furthermore, Toledo employers may not inquire, screen, rely on a job applicant’s salary history, or refuse to hire or retaliate against an applicant for not disclosing his or her salary history, but they may engage in discussions about compensation expectations.
As demonstrated above, all three cities have similar definitions of covered employers and job applicants. They each ban employers from using salary history information during the hiring process, and they each permit private causes of action. However, one major difference between the salary history bans is that in both Cincinnati and Toledo, after making a conditional offer of employment and upon reasonable request, the employer must provide a job applicant with a "pay scale" for the position. This requirement promotes transparency as to compensation to the end of remedying inequitable compensation practices. Unlike in Cincinnati and Toledo, Columbus employers are not required to provide a "pay
scale" to a job applicant.
Calfee’s Labor and Employment attorneys are available to assist employers with complying with these laws designed to promote non-discriminatory, open, and fair compensation practices. Because salary history bans are becoming more common at both the state and local levels, employers should review their job application and hiring practices to ensure compliance with any similar laws relating to wage/salary history where they conduct business or maintain employees.
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