On June 20, 2019, New York lawmakers passed a pair of bills aimed at eliminating pay disparities based on membership in a protected class. Governor Andrew Cuomo is expected to sign both bills.

Expanding Pay Equity Safeguards

The first bill expands New York’s existing pay equity law (addressed in an earlier DWT Advisory) in multiple ways. First, the new amendments proscribe pay differentials on the basis of any protected class under the New York State Human Rights Law, whereas the existing law bars only sex-based pay disparities.

Second, the new amendments prohibit differences in pay between workers performing “substantially similar” – rather than strictly equal – work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. The lower burden of proof will make it easier for employees to allege and prove pay discrimination claims.

Even as amended, the law still permits pay disparities based on the following non-discriminatory factors: (i) seniority; (ii) merit; (iii) quantity or quality of work; or (iv) a bona fide factor other than one’s status within a protected class. Recognized bona fide factors include the employee’s training, education, and experience.

This bill will take effect 90 days after it is signed into law.

Prohibiting Inquiries as to Applicant Salary History

The second bill makes it unlawful for employers within New York State to request job applicants’ salary histories. Although job candidates may voluntarily disclose their pay histories, employers may not “rely on the wage or salary history of an applicant in determining whether to offer employment to such individual or in determining the wages or salary for such individual.”

An employer may not refuse to consider an applicant who declines to provide his or her salary history. Likewise, an employer may not retaliate against an applicant based on his or her refusal to disclose pay data.

A similar New York City law (addressed in an earlier DWT Advisory) has been in effect since 2017.

The salary history bill will take effect 180 days after it is signed into law.

What Should Employers Do Now?

New York employers should review their compensation practices before the amended pay equity law takes effect. Employers should also review their recruiting, interviewing and hiring practices as well as job applications to ensure compliance with the upcoming ban on salary history inquiries.

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