Pay Equity in New York
The Achieve Equal Pay Act
Women make up nearly half the workforce in the United States, yet still only earn 80 cents for every dollar a man makes. For women of color, equal pay is even more elusive. As one of eight pieces of legislation included in the Women's Equality Act, The Achieve Equal Pay Act (“AEPA”), an amendment to the New York Labor Law, takes a big step toward closing the gender wage gap in New York by amending the State’s existing equal pay law in several significant ways.
Before the AEPA was passed, a New York employer could pay a man more than a woman for the same job if the employer could establish the difference in pay was based upon seniority, merit, quantity or quality of production, or on any factor other than sex. The AEPA changes that.
An employer can no longer rely on "any factor other than sex" to justify a difference in pay between a man and a woman doing the same job. Instead, an employer must show that the difference is based on "a bona fide factor other than sex, such as education, training and experience" and the bona fide factor “shall not be based upon or derived from a sex-based differential in compensation.” The employer's bona fide factor defense will be unsuccessful if the employee shows that the employer uses a practice that: (a) causes a disparate impact on the basis of sex, (b) an alternative employment practice exists that would serve the same purpose and not produce a differential, and (c) the employer has refused to adopt the alternative practice.
The AEPA also prohibits differentials in pay even if two employees whose pay rates are compared work in different physical locations, as long as they are in the “same geographic region,” no larger than a county. This is a departure from the EPA which limits comparisons only to jobs within the same establishment, defined as the distinct physical place of business.
Under the AEPA an employer is restricted from prohibiting an employee from “inquiring about, discussing, or disclosing” the employee's wages or the wages of another employee. Employers are permitted to create policies that establish reasonable limitations on the time, place and manner for discussion about wages, for instance prohibiting an employee from disclosing the wages of another employee without the employee's permission. Lastly, the AEPA significantly increases the statutory damages for willful violations of the law. While previously, employees could be awarded 100% of unpaid wages as liquidated damages, the AEPA now provides up to 300% of unpaid wages as a penalty for willful non-compliance.
New York City's Salary History Law
Effective October 31, 2017, all New York City employers will be prohibited from inquiring about, relying upon, and verifying a job applicant’s salary history. This amendment to the New York City Administrative Code brings private employers in New York City in line with city agencies, which have been barred from inquiring into prior salary histories since Mayor de Blasio’s executive order in November of 2016.
Once enacted, employers may not ask about and must refrain from relying on prior salary to determine “the salary, benefits or other compensation for [an] applicant during the hiring process, including the negotiation of a contract.” Employers are additionally prohibited from seeking salary history through alternative means.
There are several important exceptions, including that disclosure is permitted if employers are acting pursuant to any federal, state, or local law that authorizes the disclosure of salary history, or when an applicant is a current employee. The law does not apply to public employees whose salaries are determined by collective bargaining agreements, nor does it prohibit an employer from conducting a background check, so long as salary history, if discovered, is not used to inform the hiring or contracting process. Furthermore, employers are allowed to ask about objective markers of performance, such as revenue or sales reports.
Of note, New York State advanced similar legislation, Assembly Bill A2040C, which would restrict an New York State employer’s ability to ask job applicants about their salary histories.
GELC provides free legal services to those who have experienced gender-based discrimination in the workplace. If you you wish to speak with a member of our legal team about an equal pay issue at work, call our Hotline at (888) 833-4363.