34:6B-20 Unlawful employment practice relative to salary history; exceptions.

1. a. Except as otherwise provided in this section, it shall be an unlawful employment practice for any employer:

(1) to screen a job applicant based on the applicant's salary history, including, but not limited to, the applicant's prior wages, salaries or benefits; or

(2) to require that the applicant's salary history satisfy any minimum or maximum criteria.

b. Notwithstanding the provisions of subsection a. of this section, an employer may:

(1) consider salary history in determining salary, benefits, and other compensation for the applicant, and may verify the applicant's salary history, if an applicant voluntarily, without employer prompting or coercion, provides the employer with salary history. An applicant's refusal to volunteer compensation information shall not be considered in any employment decisions; and

(2) request that an applicant provide the employer with a written authorization to confirm salary history, including, but not limited to, the applicant's compensation and benefits, after an offer of employment that includes an explanation of the overall compensation package has been made to the applicant.

c. This section shall not apply to:

(1) applications for internal transfer or promotion with an employee's current employer, or use by the employer of previous knowledge obtained as a consequence of prior employment with the employer;

(2) any actions taken by an employer pursuant to any federal law or regulation that expressly requires the disclosure or verification of salary history for employment purposes, or requires knowledge of salary history to determine an employee's compensation;

(3) any attempt by an employer to obtain, or verify a job applicant's disclosure of, non-salary related information when conducting a background check on the job applicant, provided that, when requesting information for the background check, the employer shall specify that salary history information is not to be disclosed. If, notwithstanding that specification, salary history information is disclosed, the employer shall not retain that information or consider it when determining the salary, benefits, or other compensation of the applicant; or

(4) employer inquiries regarding an applicant's previous experience with incentive and commission plans and the terms and conditions of the plans, provided that the employer shall not seek or require the applicant to report information about the amount of earnings of the applicant in connection with the plans, and that the employer shall not make any inquiry regarding the applicant's previous experience with incentive and commission plans unless the employment opening with the employer includes an incentive or commission component as part of the total compensation program.

d. An applicant may provide salary history information, including information regarding the applicant's experience with incentive or commission plans, to an employment agency contacted by the applicant for assistance in searching for and identifying employment opportunities, but the employment agency shall not share the information with potential employers without the express written consent of the applicant.

e. (1) Any employer who violates this section shall be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation collectible by the Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).

(2) If an applicant for a job is a member of a protected class as defined in subsection t. of section 11 of P.L.1945, c.169 (C.10:5-12), an employer shall be subject to section 2 of P.L.2019, c.199 (C.10:4-12.12) for any violation of this section.

f. Nothing in this section shall be construed as prohibiting an employer from offering an applicant for a job information regarding wage or salary rates set for the job by collective bargaining agreements or by civil service or other laws, or from paying those rates if the applicant is hired.

g. Nothing in this section shall be construed to prohibit an employer who does business, employs persons, or takes applications for employment in at least one state other than New Jersey, from including an inquiry regarding salary history on an employment application, so long as immediately preceding the salary history inquiry on the employment application it states that an applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer the salary history inquiry.

h. Nothing in this section shall be construed to prohibit an employer from acquiring salary history information that is publicly available, but an employer shall not retain or consider that information when determining the salary, benefits, or other compensation of the applicant unless the applicant voluntarily, without employer prompting or coercion, provides the employer with salary history. An applicant's refusal to volunteer compensation information shall not be considered in any employment decisions.

L.2019, c.199, s.1.