New York Expands Equal Pay Requirements and Bans Pay History Inquiries

Gov. Andrew Cuomo has signed bills expanding pay equity laws in New York and banning employers statewide from asking for applicants’ pay history. The new laws will take effect on Jan. 6, 2020, and join a wave of other state and local laws passed across the U.S. this year to address the persistent gender pay gap.

New York’s amended equal pay law will cover more territory than the federal Equal Pay Act by prohibiting pay disparities among employees of different protected classes who perform “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” In contrast, federal law prohibits paying members of the opposite sex different pay rates for performing “equal work”—rather than “substantially similar work.”

Separately, New York’s statute concerning pay history inquiries bans the following conduct:

• requesting, requiring or seeking orally or in writing wage or salary history from a job candidate as a condition of being considered for a position, promotion or continued employment;
• requesting, requiring or seeking orally or in writing wage or salary history from a job candidate’s current or former employer as a condition of being considered for a position, promotion or continued employment;
• relying on pay history to determine whether to offer employment to a job candidate or what wage to offer a candidate;
• refusing to hire, interview, promote or otherwise employ a job candidate based on prior wage or salary history;
• retaliating against job candidates who refuse to provide pay history by refusing to hire, interview, promote or otherwise employ the candidate; and
• retaliating against job candidates who file a complaint with the Department of Labor for alleged violations of the statute by refusing to hire, interview, promote or otherwise employ the candidate.

The new law, however, permits applicants to voluntarily, without prompting, disclose or verify wage and salary history. It also permits employers to confirm wage or salary history if a candidate responds to a job offer by stating that the candidate was previously paid higher than the offer made by the employer. Job applicants, employees and former employees may bring a civil action for violation of this statute, and prevailing plaintiffs may recover injunctive relief, compensatory damages and reasonable attorneys’ fees.

Pay history inquiries are already unlawful in New York City and certain New York counties. While the new statute will impact New York employers on a statewide basis, employers should be careful to consider whether local restrictions on requesting and relying on pay history create additional obligations that must be observed.

Armstrong Teasdale’s Employment and Labor practice, which routinely guides employers in their efforts to comply with the rapidly changing landscape of pay equity and salary history laws, closely monitors the developments in this area of the law across jurisdictions and will issue additional alerts as obligations evolve.