As we reported in our summer newsletter, the New York Legislature passed legislation to expand the pay equity law; the bill was signed into law and, as a result, effective Oct. 8, the New York Labor Law will prohibit pay inequity not just based on sex but based on any protected class protected by the New York State Human Rights Law. The amendment also expands the law by requiring equal pay not just for equal work but for "substantially similarly work, when viewed as a composite of skill, effort, and responsibility, and performed of similarly working conditions." These amendments will make it far easier for an employee to show pay inequity and far more difficult for employers to monitor pay equity, and they are consistent with the pay equity law passed last year in New Jersey.
Employers should immediately begin conducting privileged audits of salaries and related job duties to ensure that all employees who conduct substantially similar work are paid equal amounts.
Likewise, the New York state salary history ban we previously reported on in our summer newsletter was signed into law. As a result, employers are prohibited from asking about or relying on salary history for determining salary amounts for a new applicant or promoted employee, unless the employee voluntarily discloses his or her previous pay. The bill also prohibits employers from retaliating against an applicant or employee on the basis of his or her disclosed salary and his or her refusal to disclose salary history. If, however, an employee voluntarily discloses salary history after an offer with compensation has been made in an attempt to negotiate a higher salary, an employer may confirm such salary history. At this point, it seems unlikely that an employer would be permitted to rely on information volunteered by an applicant prior to an offer with compensation. This is different from the New York City law and should be emphasized to those making hiring and compensation decisions.
All employers across the state will have to comply with this new law. As a result, employers will need to train all interviewing staff to refrain from asking about previous salaries and remove all inquiries from any application documents.
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