面试时雇主可否询问应聘者的工资历史？根据Bloomberg网的统计，目前有加州、德拉华州、马萨诸塞州、俄勒冈、华盛顿州以及波多黎各通过地方立法禁止雇主在面试时询问应聘者的工资历史。纽约、旧金山等城市也通过了类似的法案（纽约为第一个通过法案的城市）。
支持者认为，现阶段美国依然存在男女工资不平等的现象。根据美国人口调查局的报告，同样是全日制的工作，女性的工资水平只有男性工资水平的80%。因此，如果现阶段女性工资水平低于男性，而未来的工资又是基于或者参考工资的过去水平而定，那么工资的性别不平等现象将会长期化。禁止询问工资历史能帮助应聘者通过自己的知识和技能获得公平的工资水平，从而打破工资不平等的恶性循环。
除了地方立法，一些知名公司比如Amazon和Bank Of America也都在招聘中采纳了这一规则。
当然，也并非每个州都支持这一立法。像密歇根州和威斯康星州都通过专门的法律，禁止本州内的县市采取这类立法。另外像爱荷华州、北卡和田纳西州本身就要求地方县市在雇佣法领域不得超越州法的界限，因此这些州的县市也无法自行采取这类立法。
最后看一下司法系统。第九巡回法院最近以全体一致的方式判决根据工资的历史水平决定现在工资水平的做法违反了1963年颁布的《平等支付法》（Equal Pay Act）。在Rizov. Fresno County Office of Education一案中，Rizo是一名数学咨询师。2012年她发现她的男同事工资水平都比她高，于是向法院起诉，指工作单位存在性别歧视。工作单位则声称，她的工资水平是基于她的工资历史而不是基于她的性别决定，因此并不存在性别歧视。法院认为，法律不允许使用工资历史来为工资的性别差异辩护，无论是单独使用工资历史还是结合其他因素。合法的与工作相关的工资决定因素，只能是雇员的工作经验、培训经历、教育和过往的工作表现等。
资讯
2018年04月23日
资讯
美国联邦贸易委员会（FTC）FTC 宣布全国范围内禁止竞业协议，详细请看
美国联邦贸易委员会（FTC）于2024年4月23日发布最终规定，全国范围内禁止非竞争协议。此举旨在通过保护工人更换工作的自由来促进竞争，增加创新，并推动经济增长。根据FTC的预测，新业务的形成将每年增加2.7%，预计每年将新增超过8500家新企业。此外，预计工人的平均收入将增加524美元，未来十年内医疗费用预计将减少高达1940亿美元。同时，预计该规定还将在未来十年内每年新增17000至29000项专利。
详情以英文版为准：
FTC Announces Rule Banning Noncompetes
FTC’s final rule will generate over 8,500 new businesses each year, raise worker wages, lower health care costs, and boost innovation
Today, the Federal Trade Commission issued a final rule to promote competition by banning noncompetes nationwide, protecting the fundamental freedom of workers to change jobs, increasing innovation, and fostering new business formation.
“Noncompete clauses keep wages low, suppress new ideas, and rob the American economy of dynamism, including from the more than 8,500 new startups that would be created a year once noncompetes are banned,” said FTC Chair Lina M. Khan. “The FTC’s final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market.”
The FTC estimates that the final rule banning noncompetes will lead to new business formation growing by 2.7% per year, resulting in more than 8,500 additional new businesses created each year. The final rule is expected to result in higher earnings for workers, with estimated earnings increasing for the average worker by an additional $524 per year, and it is expected to lower health care costs by up to $194 billion over the next decade. In addition, the final rule is expected to help drive innovation, leading to an estimated average increase of 17,000 to 29,000 more patents each year for the next 10 years under the final rule.
Noncompetes are a widespread and often exploitative practice imposing contractual conditions that prevent workers from taking a new job or starting a new business. Noncompetes often force workers to either stay in a job they want to leave or bear other significant harms and costs, such as being forced to switch to a lower-paying field, being forced to relocate, being forced to leave the workforce altogether, or being forced to defend against expensive litigation. An estimated 30 million workers—nearly one in five Americans—are subject to a noncompete.
Under the FTC’s new rule, existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date. Existing noncompetes for senior executives - who represent less than 0.75% of workers - can remain in force under the FTC’s final rule, but employers are banned from entering into or attempting to enforce any new noncompetes, even if they involve senior executives. Employers will be required to provide notice to workers other than senior executives who are bound by an existing noncompete that they will not be enforcing any noncompetes against them.
In January 2023, the FTC issued a proposed rule which was subject to a 90-day public comment period. The FTC received more than 26,000 comments on the proposed rule, with over 25,000 comments in support of the FTC’s proposed ban on noncompetes. The comments informed the FTC’s final rulemaking process, with the FTC carefully reviewing each comment and making changes to the proposed rule in response to the public’s feedback.
In the final rule, the Commission has determined that it is an unfair method of competition, and therefore a violation of Section 5 of the FTC Act, for employers to enter into noncompetes with workers and to enforce certain noncompetes.
The Commission found that noncompetes tend to negatively affect competitive conditions in labor markets by inhibiting efficient matching between workers and employers. The Commission also found that noncompetes tend to negatively affect competitive conditions in product and service markets, inhibiting new business formation and innovation. There is also evidence that noncompetes lead to increased market concentration and higher prices for consumers.
Alternatives to Noncompetes
The Commission found that employers have several alternatives to noncompetes that still enable firms to protect their investments without having to enforce a noncompete.
Trade secret laws and non-disclosure agreements (NDAs) both provide employers with well-established means to protect proprietary and other sensitive information. Researchers estimate that over 95% of workers with a noncompete already have an NDA.
The Commission also finds that instead of using noncompetes to lock in workers, employers that wish to retain employees can compete on the merits for the worker’s labor services by improving wages and working conditions.
Changes from the NPRM
Under the final rule, existing noncompetes for senior executives can remain in force. Employers, however, are prohibited from entering into or enforcing new noncompetes with senior executives. The final rule defines senior executives as workers earning more than $151,164 annually and who are in policy-making positions.
Additionally, the Commission has eliminated a provision in the proposed rule that would have required employers to legally modify existing noncompetes by formally rescinding them. That change will help to streamline compliance.
Instead, under the final rule, employers will simply have to provide notice to workers bound to an existing noncompete that the noncompete agreement will not be enforced against them in the future. To aid employers’ compliance with this requirement, the Commission has included model language in the final rule that employers can use to communicate to workers.
The Commission vote to approve the issuance of the final rule was 3-2 with Commissioners Melissa Holyoak and Andrew N. Ferguson voting no. Commissioners’ written statements will follow at a later date.
The final rule will become effective 120 days after publication in the Federal Register.
Once the rule is effective, market participants can report information about a suspected violation of the rule to the Bureau of Competition by emailing noncompete@ftc.gov.
The Federal Trade Commission develops policy initiatives on issues that affect competition, consumers, and the U.S. economy. The FTC will never demand money, make threats, tell you to transfer money, or promise you a prize. Follow the FTC on social media, read consumer alerts and the business blog, and sign up to get the latest FTC news and alerts.
扫一扫
添加客服
