Columbus Publishes Text of New Salary History Ban Ordinance

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.