New York State Says Yes to Pay Equity!!

July 19, 2019

Lía Fiol-Matta, Esq., Ty Hyderally, Esq., Sherif Farrag

The New York State Senate and Assembly have just passed two pay equity bills amending the New York Labor Law to protect more employees against pay discrimination and to prohibit employers from seeking salary history from prospective employees. Senate Bill No. S5248A, which takes effect on October 8, 2019, prohibits pay differentials between employees on the basis of any of the “protected classes” under the New York State Human Rights Law. NY Exec L §296 (2015). This includes pay differentials based on age, race, color, creed, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status, or any other employee or intern protected from discrimination pursuant to the New York State Human Rights Law. 

The new legislation lessens an employee’s burden in proving a claim for pay discrimination. Currently, an employee must prove that they are doing equal work to the job of a higher-paid coworker, with equal skill, effort and responsibility and under similar working conditions.  Going forward, employers are now required to ensure equal pay for substantially similar work, when viewed as a composite of skill, effort, and responsibility. An employee now does not necessarily have to prove they were discriminated against while doing “equal” work as a higher-paid coworker. 

The new law maintains the exceptions in the labor law where pay differentials may exist on non-discriminatory factors, such as systems that measure earnings based on merit, seniority, the quality of work or quantity of production, or a bona fide factor, such as an employee’s education, training, or experience.  Though these exceptions seem expansive, the bona fide factor is limited by a requirement that it: 1) not be based on or derived from status within one or more protected class or classes and 2) be job-related with respect to the position and consistent with business necessity.  In other words, if the bona fide factor is a certain education degree, the degree-granting institution cannot itself be granting degrees based on a discriminatory basis.  If the basis for the differential is a degree that is in and of itself discriminatory, then the employee may have a case against the employer. 

The law also contains additional requirements for the bona fide factor exception.  The bona fide factor does not exempt the employer when: 1) the employer uses a particular employment practice causing a disparate impact on the basis of status within one or more protected classes, 2) an alternative employment practice exists that would serve the same business purpose and not produce the differential, and 3) the employer refused to implement such alternative practice.

The second pay equity legislation just passed by the New York State Senate and Assembly is Senate Bill No. S6549, taking effect on January 6, 2020, which establishes broad restrictions on wage and salary history inquiries when making decisions on hiring, promotion and retention.  This bill makes it unlawful for an employer to ask for the wage or salary history of an applicant in order to decide whether to interview the applicant, offer the applicant employment or determine the compensation of such individual.  An exception is allowed for voluntary disclosure by a job applicant, without prompting, of compensation history, for the purpose of negotiating wages or salary.

  Importantly, New York employers cannot retaliate against job applicants or current employees for refusing to provide prior wage or salary history information, or for filing a complaint with the Department of Labor alleging a violation of this law.  A job applicant, current or former employee may bring a civil action for compensation for damages sustained as a result of a violation of this law.

If you have questions concerning the new pay equity laws passed in New York State or believe your right to be justly compensated has been violated, we encourage you to consult an employment attorney.  

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.