In March, the Columbus City Council enacted a new ordinance prohibiting most local employers from seeking information about salary history from job applicants beginning on March 1, 2024. The text of the ordinance has recently been posted online by creating new chapter 2335. The ordinance is based on the historical disparity in wages between men and women (without regard to the different jobs held, such as the wage differential between construction and childcare jobs) and the belief that requesting salary history perpetuates perceived past wage discrimination. Applicants who believe that their rights under this new ordinance have been violated may filed a Charge within six months with the City’s Community Relations Commission under Ordinance §2331.05.
The ordinance applies to any job for wages which will be
performed anywhere within the City limits when the application will be
processed, solicited, received or considered within the City limits by an
employer with at least 15 employees (but not any governmental employer other
than the City of Columbus itself). The
ordinance does not apply to independent contractors, but does apply to
temporary, seasonal, part-time and contingent work paid with wages, salary or
commission.
Employers may not inquire in writing or verbally of the
applicant or a prior employer about the applicant’s salary history, which
includes wages, salary, benefits or other compensation, but does not include
productivity measures, such as revenue generated, sales or other production
goals.
There are exceptions for when the “applicant” is already employed
by the employer or was recently employed by the employer, when the employer is
relying on a federal or state statute for inquiring and relying upon salary
history, when the employer receives an unprompted disclosure of an applicant’s
salary history, and when a collective bargaining agreement determines the
compensation rate.
Civil Penalties (starting at $1,000) may be imposed for
violations of the ordinance after a hearing.
The relevant language of the ordinance and potential penalties
are here:
SECTION 1. That Chapter 2335
of the Columbus City Codes is hereby enacted to read as follows:
Chapter 2335 - PROHIBITED SALARY HISTORY INQUIRY AND USE
2335.01 – Definitions
(A) "Applicant" means any person applying for employment to
be performed within the geographic boundaries of the City of Columbus, and
whose application, in whole or in part, will be solicited, received, processed,
or considered in the City of Columbus, regardless of whether the applicant is
interviewed.
(B) "Employer" means an individual, firm, limited liability
company, partnership, association, labor organization, corporation, or any
other entity whether or not organized for profit, that employs fifteen (15) or
more persons on a qualifying wage, commission, or other compensation basis
within the City of Columbus. “Employer” includes job placement and referral
agencies and other employment agencies when such agencies operate on behalf of
an entity that otherwise meets the definition of “Employer”. “Employer” does
not include any unit of local, state, or federal government, except the City of
Columbus.
(C) "Employment" means any occupation, vocation, job, or
work, including but not limited to, temporary and seasonal work, part-time
work, contracted work, contingent work, work on commission, and work through
the services of a temporary or other employment agency for which the applicant
is to receive wages or a salary. Employment does not include work as an
independent contractor.
(D) "Inquire" means to communicate any question or statement
to an applicant, an applicant's current or prior employers, or a current or
former employee or agent of the applicant's current or prior employers, in
writing or otherwise, for the purpose of obtaining an applicant's salary
history, or to conduct a search of publicly available records or reports for
the purpose of obtaining an applicant's salary history, but does not include
informing the applicant in writing or otherwise about the position's proposed
or anticipated salary or salary range.
(E) "Salary history" includes the applicant's current or
prior wage, benefits, or other compensation. "Salary history" does
not include any objective measure of the applicant's productivity such as
revenue, sales, or other production reports.
2335.02 - Purpose The purpose and intent of this chapter is to elevate
the best practices for hiring that promote pay equity. The practices addressed
in this chapter can, if used, perpetuate issues of systemic discrimination
related to the wage gap and wealth gap for women, especially women of color. To
promote pay equity across the workforce in the City of Columbus, the following
prohibitions are established.
2335.03 - Unlawful discriminatory practices regarding the use of salary
history.
(A) Except as otherwise provided in division (B) of this section, an
employer shall not do any of the following:
(1) Inquire about the salary history of an applicant
for employment;
(2) Screen job applicants based on their current or
prior wages, benefits, other compensation, or salary histories, including
requiring that an applicant's prior wages, benefits, other compensation or
salary history satisfy minimum or maximum criteria;
(3) Rely solely on the salary history of an
applicant, except as provided in division (C) of this section, in deciding
whether to offer employment to an applicant, or in determining the salary,
benefits, or other compensation for such applicant during the hiring process,
including the negotiation of an employment contract;
(4) Refuse to hire or otherwise disfavor, injure, or
retaliate against an applicant for not disclosing salary history to an
employer.
(B) Notwithstanding division (A) of this section, an employer may,
without inquiring about salary history, engage in discussion with the applicant
about their expectations with respect to salary, benefits, and other
compensation, including but not limited to unvested equity or deferred
compensation that an applicant would forfeit by resigning from their current
employer.
(C) The prohibitions contained in this section shall not apply to any
of the following:
(1) Any actions taken by an employer pursuant to any
federal, state, or local law that specifically authorizes the reliance on
salary history to determine an employee's compensation;
(2) Applicants for internal transfer or promotion
with their current employer;
(3) A voluntary and unprompted disclosure of salary
history information by an Applicant;
(4) Any attempt by an employer to verify an
applicant's disclosure of non-salary related information or conduct a
background check, provided that if such verification or background check
discloses the applicant's salary history, such disclosure shall not be solely
relied upon for purposes of determining the salary, benefits, or other
compensation of such applicant during the hiring process, including the
negotiation of a contract;
(5) Applicants who are re-hired by the employer
within three years of the Applicant's most recent date of termination of
employment by the Employer, provided that the employer already has past salary
history data regarding the Applicant from the previous employment of Applicant;
(6) Employee positions for which salary, benefits, or
other compensation are determined pursuant to procedures established by
collective bargaining;
(7) Federal, state, and local governmental employers,
other than the City of Columbus.
2335.04 - Complaint Procedure An applicant may file a complaint with
the Community Relations Commission under Section 2331.05(A) alleging that an
employer has engaged in or is now engaging in any violations of section
2335.03.
2335.05 - Civil Penalties Upon an administrative finding of violation
by the commission, an employer may be subject to civil penalties outlined in
Section 2331.05(B).
2335.06 - Severability If any provision or section of this chapter or
the enforcement of any such provision or section is held to be invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect or render invalid or unenforceable any other
provision or section of this chapter. To this end, each of the provisions and
sections of this chapter are severable.
2335.07 - Effective Date This Chapter shall take effect on March 1,
2024.
SECTION 3. That Section 2331.05 of the Columbus City Codes is hereby
amended as follows:
2331.05 Complaint procedure.
(A) Whenever it is alleged in a complaint, in writing, by a person or
aggrieved organization, hereinafter referenced to as "complainant,"
that any person, employer, employment agency, or labor organization,
hereinafter referred to as the "respondent," has engaged in or is
engaging in any unlawful discriminatory practices as defined in Title 23,
Chapter 2331 and Chapter 2335 of the Columbus City Codes, or upon its own
initiative, in matters relating to such discriminatory practices, the community
relations commission staff may initiate a preliminary investigation. Such
complaint shall be filed with the community relations commission within six (6)
months after the alleged unlawful discriminatory practices are committed.
(1) If the community relations commission staff
determines after such investigation, that there is no reasonable basis to
believe that unlawful discriminatory practices have been or are being engaged
in, staff may recommend to the community relations commission that the
complaint be dismissed. If the commission approves, staff shall notify the
complainant that it has so determined, and the complaint will be dismissed.
(2) If the community relations commission staff
determines, after such investigation, that there is a reasonable basis to
believe that unlawful discriminatory practices have been or are being engaged
in, they shall endeavor to eliminate such practices by informal methods of
conference, conciliation, and persuasion.
(a) If after such investigation and conference the
community relations commission staff is satisfied that any unlawful
discriminatory practice of the respondent will be eliminated, staff may
recommend to the community relations commission that it treat the complaint as
conciliated. If the commission agrees, staff shall notify the complainant that
the complaint will be dismissed.
(b) If the
community relations commission staff fails to effect the elimination of such
unlawful discriminatory practices or to obtain conciliation of the matter, or,
if the circumstances warrant, in advance of or during any such preliminary
investigation or endeavors to conciliate the matter, the community relations
commission may refer the complaint to the City Prosecutor to evaluate for
criminal prosecution. This subdivision shall not apply to complaints filed under
Chapter 2335.
(c) If the community relations commission staff fails
to effect the elimination of such unlawful discriminatory practices or to
obtain conciliation of the matter and no referral to the City Prosecutor to
evaluate for criminal prosecution is then pending, the community relations
commission may direct staff to issue and cause to be served upon the respondent
a notice of a finding of administrative violation and imposition of civil
penalty. The notice shall notify the respondent of the right to request an administrative
hearing before a hearing officer appointed by the community relations
commission to contest the finding of administrative violation. Failure to
request an administrative hearing within fifteen (15) days of receipt of the
notice of violation shall constitute a waiver of the right to a hearing.
(B) If a hearing officer is appointed, the hearing officer shall have
the authority to:
(1) Conduct an administrative hearing;
(2) Provide to all the parties, witnesses, and the
Community Relations Commission timely notice of the hearing date, time, and
location;
(3) Direct the exchange of discovery;
(4) Set, change as necessary, and timely communicate
to the parties such reasonable procedural rules as the hearing officer shall
deem appropriate including:
(a) A member of the Community Relations Commission
staff shall have the burden of going forward with the presentation of evidence.
All parties shall have the right to appear and be heard in person, or by legal
counsel, to present their case.
(b) All parties shall have the right to: offer and
examine witnesses and present evidence in support of their case; cross examine
adverse witnesses; and proffer evidence into the record if its admission has
been denied.
(c) Testimony shall be given under oath.
(d) The hearing officer shall make recommendations on
all matters of evidence. In so doing, the hearing officer is not strictly bound
by the rules of evidence. The hearing officer may ask questions of any witness
at any point in the proceedings and may set time and other limitations for each
side in the presentation of evidence. A record of proceedings shall be kept.
Parties seeking a stenographic record shall acquire such stenographic record at
their own expense.
(5) Except as otherwise prescribed by law, the
hearing officer shall submit to the Community Relations Commission a written
report setting forth the hearing officer's findings of fact and conclusions of
law and a recommendation of the action to be taken by the Commission.
(a) If the Hearing Officer finds, by a preponderance
of the evidence, that respondent did engage in, or continues to engage in, an
unlawful discriminatory act or practice under this chapter as noticed in the
finding of administrative violation, the Hearing Officer's report shall so
indicate by recommending that the finding of violation be upheld.
(b) If the Hearing Officer finds that the evidence
presented failed to support the finding of violation, the Hearing Officer's
report shall so indicate by recommending that the finding of administrative
violation be overturned and the complaint dismissed.
(c) The final report of the Hearing Officer may not
include any orders for reinstatement of employment, refund of monies paid,
other mitigation of damages, or any other orders for corrections or sanctions,
except as provided in this section.
(6) A copy of the Hearing Officer's written report
and recommendation shall, within five days of the date of filing thereof, be
served upon the respondent or respondent's attorney, by certified mail. The
respondent may, within ten days of receipt of the copy of the written report or
recommendation, file with the Community Relations Commission written objections
to the report and recommendation, which objections shall be considered by the
Community Relations Commission before approving, modifying, or disapproving the
recommendation. The Community Relations Commission may grant extensions of time
to the respondent within which to file such objections. No recommendation of
the Hearing Officer shall be approved, modified, or disapproved by the
Community Relations Commission until ten days after the service of the report
and recommendation as provided in this section. The Community Relations Commission
may order additional testimony to be taken or permit the introduction of
further documentary evidence.
(7) The Community Relations Commission, by majority
vote, may approve, modify or disapprove the recommendation from the Hearing
Officer by written decision which shall become effective upon service to the
affected parties, unless otherwise stated in the Community Relation
Commission's decision.
(8) The final decision of the Community Relations
Commission may be appealed pursuant to the provisions of R.C. Chapter 2506.
(B) Civil Penalties
(1) Upon an administrative finding of violation by
the commission, a civil penalty in an amount not to exceed one thousand dollars
($1,000) may be imposed;
(2) Upon an administrative finding of violation by
the commission, if the violator has been found to have committed one violation
of this Chapter during the five-year period immediately preceding the date on
which a complaint was filed with the community relations commission, a civil
penalty in an amount not to exceed two thousand five hundred dollars ($2,500)
may be imposed;
(3) Upon an
administrative finding of violation by the commission, if the violator has been
found to have committed two or more violations of this Chapter during the
five-year period immediately preceding the date on which a complaint was filed
with the community relations commission, a civil penalty in an amount not to
exceed five thousand dollars ($5,000) may be imposed;
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
