1

Some US cities and states have made it illegal to ask about a candidate's current salary. https://www.businessinsider.com/places-where-salary-question-banned-us-2017-10

However, in each interview situation multiple states can be involved, so I'm wondering how to determine which law(s) apply here. Options are

  1. Residence state of candidate and/or interviewer
  2. Headquarter state of the company
  3. State where the company is incorporated (mostly Delaware these days)
  4. State where the interview takes place (could be two, if it's a phone or video call)
  5. Location of work place (often not known during exploratory phase)

The last one seems like a reasonably choice, but it many cases it's not been determined yet. For example, my current employer has offices in multiple states and we leave it up to the candidate to pick the location they like best. That happens fairly late in the game and sometimes only after the offer has been signed, so any salary negotiation would happen before that.

Another example: if it's a Work Remotely gig: Is it the candidate's resident state or the nearest company location, where you need to show up once a month?

Related: Will New York City's new law prohibiting questions about salary history protect residents who are applying for jobs outside the city? gives a partial answer but is less comprehensive.

Also related: Statutory Rape: Which State's Laws Apply?. This one concludes "state is determined by the location of the offense". If we apply the same logic here, we'd get "physical location of the interviewer at time of interview". Which would mean that an interviewer from New York (here it's illegal) could just drive over the river and make the phone call from New Jersey (where it's legal).

2

None, any or all

There are two related questions here:

  1. Which court has jurisdiction? When a case is brought the first thing a court does is look at the facts and the relevant law (both the law relating to the facts and the law that empowers the court itself) and make a decision if it has jurisdiction to hear the case. In most cases, this is not an issue so the decision is tacit. A court may not have jurisdiction for all sorts of reasons: there is a money value limit, there is a geographical limit, the parties do not have standing etc. Note that multiple courts can have jurisdiction at the same time allowing the plaintiff to 'forum shop' their case: for example, it is much better to bring a defamation case almost anywhere in the world over the USA.

  2. Which law applies? A court, having decided it does have jurisdiction, needs to decide which law applies. Again, multiple laws may be applicable at the same time depending on the wording of the laws and precedent. So, New York courts can have jurisdiction to decide a case under Texas law.

Any of your suggestions may or may not engage jurisdiction or legal system of none, any or all of the relevant states - it depends on the circumstances of the particular case and the wording of the particular statute. For example, assume NY has a law applying only to businesses and TX has a law applying only to residents - a NY business interviewing a TX resident would be captured by both while a TX business interviewing a NY resident would be captured by neither.

  • What would be the likely outcome if the NY-based interviewer crossed into NJ and asked for current salary information from a NY resident? Prosecution (the interviewee) would argue the intent is to flout the law, the interviewer was acting in their official capacity as NY business person, therefore the proper law should be NY. Maybe there are relevant cases in eg: conflict of law for all-party consent cases, especially such as divorce cases? – Max Feb 21 at 22:33
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Most likely the organization will comply with the more restrictive law to avoid going to court over this entirely. This would mean that the state the company the job is currently in would win out as they would require the HR person doing your interview to not ask the questions, even if the interviewer was in NJ and calling TX. It's a lot easier to just remove the questions than to engage in a court battle over the legality of the situation (which is how you would get clarity on the matter). For multi-state companies with buissness in multiple states, they would probably print compliant applications for their state based on the rules in each state, so only a McDonald's Job in NY would remove the questions where as South Dakota would keep them.

  • Thanks, but the question is not about what the company would or should do, but by what rules one would determine which state law is applicable, especially if the actual job location has not been determined yet. – Hilmar Feb 21 at 18:42

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