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February 22, 2024
Effective March 1, 2024, Columbus, Ohio will join the ranks of governmental and municipal authorities attempting to combat pay disparity and promote pay equity by banning prospective employers from asking job applicants about their salary histories.
Early in 2023, the Columbus City Council approved an ordinance creating Chapter 2335 of the Columbus City Code, which makes it an unlawful discriminatory practice to inquire about applicants’ past wages, benefits, salary, or other compensation. The ordinance, signed into law by Columbus Mayor Andrew J. Ginther on March 15, 2023, is supported by a legislative report that describes stark disparities between the average wages for full-time female employees and their male counterparts ($0.84 for every $1.00), with the discrepancies even more flagrant for Black and Latina women. The legislative report goes on to explain that issues of pay inequality are partly based on systemic discrimination, which can be addressed, going forward, by eliminating consideration of salary history during the job application process.
Who Is Covered?
The new ordinance applies to the City of Columbus government and to private employers who have at least 15 employees. It covers not only anyone who is applying for a job that will be performed within Columbus, Ohio, but also anyone whose application will be received, considered, processed, or solicited within the borders of Columbus. Covered individuals include applicants for full-time, part-time, temporary, or seasonal employment, but not independent contractors, state or federal government applicants, or applicants for a job with another local government or municipality.
What Are Covered Employers Prohibited from Doing?
Covered employers cannot “inquire” about an applicant’s past wages, benefits, salary, or other compensation at any point during the job application process (either in interviews or on a written application); cannot “screen out” applicants based on them having previously earned a certain minimum or maximum amount; cannot penalize an applicant for failing to disclose salary history; and cannot solely rely upon past compensation to determine future compensation. This means that employers cannot research or investigate compensation history, question an applicant, or otherwise attempt to elicit this information from the applicant, their current or former employers, or their recruiters or headhunters.
What Are Covered Employers Allowed to Do?
Covered employers can still disclose the anticipated salary or salary range for a particular position, and they are permitted to discuss compensation and benefit expectations with applicants, so long as the employer does not request information about salary history. Additionally, covered employers can collect data about other objective measures of performance, such as sales, revenue, or production reports, and they can inquire about any deferred compensation or unvested equity that the applicant expects to forfeit as a result of leaving their current employer.
The ordinance also contains a few exceptions to the blanket prohibition. Specifically, salary history discussions are permissible in the following contexts:
What Are the Penalties for Violating the Ordinance?
A job applicant who believes that a violation has occurred may file a complaint with the Community Relations Commission, which is charged with enforcing the new ordinance. If the Commission finds that a violation has occurred, the employer can be subject to civil penalties of $1,000, which can increase to up to $5,000 for repeat offenses within a five-year period.
What Should Employers Do to Prepare?
For any Columbus-based employers and other employers planning to recruit, interview, or hire in the Columbus, Ohio area in 2024, schedule training for internal recruiters, HR professionals, and interviewers and update interview guidelines, application forms, and job search memos to eliminate any references to applicants’ current and previous compensation, salary, and benefit levels.
The author of this article, Helena I. Poch Ciechanowski, is a member of the Bars of Pennsylvania and New Jersey. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Ohio, Pennsylvania, New Jersey, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
