New York state lawmakers were busy during the final days of the legislative session, introducing and passing several bills as part of an aggressive agenda to overhaul New York state employment laws. In addition to passing bills that would redefine unlawful harassment (more information available in our previous Legal Alert), New York state lawmakers passed two bills aimed at increasing pay equity. One would make New York the fourteenth state to prohibit employers from asking applicants questions about salary history.  The other bill would amend the New York Labor Law to expand the definition of unlawful pay disparities.  Governor Cuomo is expected to sign both of the bills.

Ban on Salary History Inquiries

 The bill would add a new section (194-a) to the New York Labor Law that prohibits employers from making any inquiries about an applicant’s salary history in connection with an application, interview, offer of employment, or promotion. Employers would also not be allowed to “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.”

Applicants would still be allowed to, without prompting, provide prior salary information for the purpose of negotiating their salary. Employers would only be allowed to confirm prior salary information if the applicant offers such information in an effort to negotiate a higher salary after an offer has already been made.

The bill would go into effect 180 days after it becomes law.

Expansion of Ban on Pay Disparities

The bill would amend Section 194 of the New York Labor Law, which prohibits pay disparities based on sex, to prohibit pay disparities based on any protected characteristic under the New York Human Rights Law, including “age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.” In addition, the bill would require equal pay for “substantially similar work” as well as “equal work.”  The law currently requires equal pay for “equal work . . . which requires equal skill, effort and responsibility, and which is performed under similar working conditions.”  The amended law would also require equal pay for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”

The law would still include an exception for pay disparities when they are based on: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a bona fide factor other than the protected characteristic.

Section 194 would still only apply to private employers, and the bill would go into effect 90 days after it becomes law.

Takeaways for Employers

Governor Cuomo, New York state lawmakers, and the agencies responsible for enforcing New York state employment laws have made it clear that they want more accountability for employers. Assuming these bills are signed by the Governor, employers must ensure that those in position to interview applicants and make hiring decisions – along with those who decide how much employees are paid – understand and comply with the new requirements and prohibitions.  To the extent employers have policies or written protocols that may touch on wage history or pay rates, they should also review them to be sure they are still compliant.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.