United States: Significant Changes To New York Laws On Pay Equity, Transgender Protection, And Wage Payments

New York Governor Andrew Cuomo and the State Department of Labor ("DOL") have taken several steps in recent weeks that will significantly affect employers throughout the State.  These changes concern the rights of women in the workplace; protecting transgender individuals from discrimination in employment; allowing employers to continue to make certain authorized deductions from employees' wages; an increase in the minimum wage for tipped workers in the hospitality industry and employees in the fast food industry; and the payment of wages by payroll debit cards and direct deposit.

A summary of these revisions (and proposed revisions) is below.

Women's Equality

Cuomo signed into law five new statutory provisions affecting women's rights in the workplace, all of which will become effective on January 19, 2016:

  1. "Fair Pay" Protections:  New York will join California in enacting laws that will make it far easier for plaintiffs to pursue gender-based pay equity claims in the New Year (see our prior alert on the New York Legislature's approval of this bill here and our alert on the California Fair Pay Act here).  New York Labor Law § 194 - the State's counterpart to the federal Equal Pay Act - currently prohibits discrimination in pay based on sex, but like the federal Equal Pay Act, its reach is limited.  While the New York law will not be quite as far reaching as the one recently enacted in California, it will mean meaningful changes for employers with New York-based employees:
    • Employees can be compared even if they do not work at the same establishment so long as they work in the same "geographic region," no larger than the same county.  While the New York law is less expansive than the California law, which permits comparison of employees sitting hundreds of miles away, this is still a significant extension of the existing federal and state law and will impact employers with multiple work sites within the same county.
    • The new law adds to the existing law requiring that employers justify pay differentials and limits the factors that employers can use, mirroring the expansive California Fair Pay Act.  The New York law puts the burden on employers to affirmatively demonstrate that any pay differences are based on one or more of a limited number of factors. The permitted reasons for differences in pay are:
      • A seniority system;
      • A merit system;
      • A system that measures earnings by quantity or quality of production; or
      • A bona fide factor other than sex such as education, training, or experience.

        This bona fide factor exception will replace the "any other factor other than sex" language in the current law, and will apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a "business necessity" (i.e., the factor relied upon effectively fulfills the business purpose it is supposed to serve).  But this defense will not apply if there is an employment practice that causes a disparate impact, or if the employer refuses to adopt a neutral alternative practice that would serve the same business need.
    • Employers may not prohibit employees from inquiring about, discussing, or disclosing wage information.
    • Finally, liquidated damages for willful violations of § 194 will be increased to 300% of wages due.
  2. Expanded Definition of "Employer" in Sexual Harassment Cases:  The New York State Human Rights Law ("NYSHRL") currently excludes employers with fewer than four employees from the definition of "employer."  The new law will expand this definition, in sexual harassment cases only, to all employers within New York regardless of size.
  3. Plaintiffs May Recover Attorneys' Fees in Sex Discrimination Cases:  Under the current law, plaintiffs cannot recover attorneys' fees at trial in employment discrimination cases.  This bill will amend the NYSHRL to allow successful plaintiffs to recover fees in employment or credit discrimination cases where the discrimination is based on sex.
  4. Familial Status Discrimination:  This bill amends the NYSHRL to prohibit discrimination in employment based on familial status.
  5. Accommodations for Pregnancy-Related Conditions:  This bill amends the NYSHRL to clarify that employers must provide reasonable accommodations to employees with pregnancy-related medical conditions, unless doing so would create an undue hardship.  Under the new law, pregnancy-related conditions are to be treated as temporary disabilities.  Also, the employee must cooperate in providing medical or other information necessary to verify the existence of the pregnancy-related condition or necessary to consider the accommodation.  Employers must keep such medical information confidential.

Regulations Protecting Transgender Individuals

The Governor has directed the New York State Division of Human Rights to issue proposed regulations to prohibit discrimination and harassment in employment based on gender identity, the status of being transgender, and gender dysphoria.  Under the proposals, the term "sex," as used in the NYSHRL, will include gender identity and the status of being transgender, and the term "disability" will include gender dysphoria.

The proposed regulations are subject to a 45-day comment period before taking effect.  (The proposed regulations are available here.)

Labor Law Amendments on Permissible Wage Deductions Extended

In 2012, Labor Law § 193 was amended to expand the instances where employers could make deductions from employee wages with the employee's consent.  The expanded grounds for permitted deductions included deductions for gym membership dues, discounted parking or mass transit passes, cafeteria and vending machine purchases at an employer's place of business, tuition fees for pre-school through post-secondary school, and daycare, before-school and after-school care expenses, among other deduction categories.  Of particular interest to many employers were new provisions allowing wage deductions for recovery of overpayments of wages and repayment of advances.

Under the 2012 enactment, these changes were set to expire and be deemed repealed three years after their effective date - meaning they would have expired on November 6, 2015.  Before that deadline, Governor Cuomo signed into law a bill that extends the expiration date for an additional three years, through November 2018.

Raising the Minimum Wage and Reducing the "Tip Credit" in the Hospitality Industry

On October 7, 2015, the DOL published proposed regulations that, as of December 31, 2015, would raise the minimum wage for "service employees" and "food service workers" to $7.50 per hour (from $5.65 and $5.00 per hour, respectively), and reduce the maximum available "tip credit" to $1.50 per hour (from $3.35 and $4.00, respectively).  With respect to service employees working in resort hotels, the proposed regulations would similarly raise the minimum wage to $7.50 per hour (from $4.90 per hour), and reduce the maximum available "tip credit" to $1.50 per hour (from $4.10 per hour), but further state that the tips received must "equal or exceed at least $5.05 per hour."  The proposed regulations are subject to a 45-day public comment period.

Minimum Wage for Fast Food Employees

The DOL issued proposed regulations on October 21, 2015 to raise the minimum wage for "fast food employees" working at a "fast food establishment" to $15.00 per hour by December 31, 2018 in New York City and by July 1, 2021 in the rest of New York State.  The regulations implement the proposal made by the Fast Food Wage Board last July, which was adopted in full by the acting Commissioner of Labor.  The increase would be phased-in according to a schedule set forth in the proposed regulations, with the first increase of $10.50 per hour in New York City and $9.75 per hour outside of New York City to be effective on December 31, 2015.  The proposed regulations are subject to a 45-day public comment period.

Payment of Wages By Payroll Debit Cards and Direct Deposit

The DOL issued proposed revised regulations on October 28, 2015 governing permissible methods of wage payment, including payment by payroll debit cards and direct deposit.  The revisions respond to comments the DOL received after publishing its proposed regulations in May.  The proposed revised regulations are subject to another 30-day public comment period.  The regulations will go into effect six months after adoption of the final rule.

For employers that pay wages by payroll debit card or direct deposit, the proposed revised regulations would require that they provide employees a written notice that includes:

  1. a plain language description of all of the employee's options for receiving wages;
  2. a statement that the employer may not require the employee to accept wages by payroll debit card or by direct deposit;
  3. a statement that the employee may not be charged any fees for services that are necessary for the employee to access his or her wages in full; and
  4. a list of locations where employees can access and withdraw wages at no charge within reasonable proximity to their place of residence or place of work.

The regulations would further require that employers obtain employees' informed written consent without intimidation, coercion, or fear of adverse action for refusal to accept payment of wages by direct deposit or payroll debit card, and employers may not make payment of wages by direct deposit or payroll debit card a condition of hire or of continued employment.

Under the proposed regulations, employers must provide written notice and written consent in English and the employee's primary language when a template notice and consent in such language is available from the Commissioner of Labor. Employers may provide written notice and obtain employees' written consent electronically, so long as the employee can view and print both the notice and consent at work, without cost, and the employer notifies the employee through the electronic process of his or her right to print these materials.

In addition, for payment by direct deposit, the proposed regulations would require the employer to keep a copy of the employee's consent during the period of the employee's employment and for six years following the last payment of wages by direct deposit.  The employer must also give the employee a copy of his or her written consent.

For payment by payroll debit card, the proposed regulations impose several additional requirements on employers before they are able to utilize this method of payment.  Beyond the consent and notice requirements, employers must wait seven business days after an employee gives consent before paying that employee's wages by payroll debit card, and must ensure that the employee is provided access to one or more ATMs located within a reasonable travel distance to the employee's work location or home, as well as a method to withdraw up to the total amount of wages for each pay period or balance remaining on the payroll debit card without the employee incurring a fee. Also, if an employee is covered by a valid collective bargaining agreement that expressly provides the method(s) by which wages may be paid to employees, the employer must obtain the union's approval before paying covered employees by payroll debit card.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions