Salary Ban Ordinance: What you need to know...

“On balance, we believe that this law moves our community in the right direction toward gender and racial equity.” 

Background

On March 13, 2019, Cincinnati City Council passed a law prohibiting employers in the City of Cincinnati from asking job applicants about their salary or wage history. 

Women in the Cincinnati region make $0.80 for every $1.00 earned by men, adding up to an average loss of $327,953 in wages over the course of a career. This wage gap is even greater for persons of color. This law will prevent historic gender and racial disparities from following an employee from one job to the next. For more information about why we believe this is good for our community, read our op-ed

How the Cincinnati Salary History Ban ordinance will work.

Salary History Ban

  • Cincinnati employers may not inquire about, screen, or rely upon salary history information (including wages, benefits or other compensation) during the job application process.
  • Employers may not retaliate against a job candidate for refusing to provide salary information.

Pay Range Information

  • Once a conditional offer of employment is made, employers must provide a pay range for the position, if it is requested. 

Which Employers (and Positions)?

  • Applies to positions that will be performed within Cincinnati city limits.
  • Applies to any employer with 15 or more employees (including job placement and referral agencies, and the City of Cincinnati).
  • Does NOT include:
    • Government agencies (other than the City of Cincinnati)
    • Internal transfers/promotions or re-hires within 5 years
    • Positions subject to collective bargaining agreements

Salary Negotiations: This does not place limitations on salary negotiations, and employers may still ask about a job candidate’s salary expectations.
Voluntary Disclosure: Employers may consider salary history information if it is voluntarily disclosed by job applicants (without prompting).
Enforcement: Enforcement is done through a private cause of action (a lawsuit) by the job applicant. There is not a government agency designated to enforce this law.  
Employer Safe Harbor: The legislation creates an “safe harbor” provision for employers that, during the prior three years, have received an external review and made publicly available certification that their hiring practices do not include salary history.  
Additional Information: Prior to implementation of the law, a working group will be convened by the City to advise employers and the community on the impact and implementation of the legislation. 
Note: This ordinance was passed in March 2019. It will not go into effect until on or about April 11, 2020.

Are you an employer? How you can begin implementing this law now.

Several human resource websites provide guidance on how to remove salary history questions from the job application process. See below for additional information:

Are you a job applicant? Here’s how this law will impact you.

Beginning April 2020, employers with 15 or more employees in the City of Cincinnati may not ask about your current or prior salary or wages during the application and interview process.

  • Employers will still be permitted to ask about your salary expectations.
  • Job applicants may voluntarily disclose their salary history, so long as it is truly voluntary and not prompted by the potential employer. 
  • Employers must provide a position pay range once they make a conditional job offer to an applicant (upon request by the applicant).

What about the Philadelphia case?

In 2017, Philadelphia passed legislation very similar to the Cincinnati salary history ban. They were sued, and a federal district judge struck down part of the law. The court found that it was a violation of the First Amendment to prohibit employers from asking the question, but it was permissible for the city to tell employers they were not allowed to rely on the response. This is tricky – how do you disregard a piece of information that you’ve just heard and how do you prove that it didn’t impact your decision?

This decision is currently on appeal to the 3rd Circuit by both sides. However, the Philadelphia case has come up often during the Cincinnati salary history ban process. Here’s how the Philadelphia case was addressed in Cincinnati: 

  • Philadelphia Court’s Reasoning: In laying out its decision, the court noted that there should be deference given to legislatures in making laws, but the Philadelphia legislature did not consider empirical evidence sufficiently linking the law/policy (banning the salary history question) to the problem (the gender wage gap). This lack of evidence is why the law was found partially unconstitutional. 
  • Cincinnati’s Response: When the Cincinnati ordinance was considered, the Philadelphia case was front and center. Members of the Council committee did not want to open the City up to the same litigation as in the Philadelphia case. Before it went to a vote, the members wanted to make sure they were thorough and considered evidence linking this specific remedy to salary discrepancies.
  • The Research: The Women’s Fund researched the issue and found two studies that had just been released (but not yet published). They both demonstrate a direct link between this question and the issue at hand, the wage gap. This is new information that was not available when the Philadelphia ban was passed or when it went to court. The Women’s Fund presented this evidence to the Committee. The Committee members expressed that they believe this sufficiently resolves the issue that was the crux of the court case in Philadelphia. 
  • What will happen? It’s impossible to predict all the unintended consequences of a specific piece of legislation or whether an entity will decide to sue. However, the issues raised in the Philadelphia case were researched and considered heavily prior to passage of the Cincinnati salary history ordinance. 

Want to learn more? Review the complete background research and information we provided to Cincinnati City Council in support of the salary history ban. Contact Holly Hankinson at holly.hankinson@gcfdn.org

** Disclaimer: The information contained on this site is not legal advice nor is it a substitute for legal advice. For specific guidance on how this legislation impacts you or your business, please consult an attorney. 

Further Reading and Resources:

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