Several New York State laws protect against salary discrimination. One law requires pay equity; the other bans questions about salary history. Since 2019, New York has sought to address the continuing gender pay gap that exists in many workplaces despite numerous laws prohibiting gender discrimination. Many studies have examined the pay gap, which at best seems to show that women earn 85% of what a man does. This figure is substantially worse for women of color and also varies by age and type of job.
In 2019, New York’s Pay Equity Law was expanded so that the equal pay requirement extends to “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” In other words, it now applies even if the jobs are not identical.
The law also gives pay equity rights to all protected classifications under New York State’s Human Rights Law. Unequal pay is prohibited based on 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. Essentially, the law requires that someone within one of these protected classes be paid the same amount as someone outside the protected class for substantially similar work.
However, employers are permitted to pay employees differently where the difference is based on:
New York law also prohibits employers from asking about salary history. If someone is discriminated against based on their previous salary, the discrimination is often perpetuated in future jobs. For that reason employers cannot request, require, or rely on the salary history of applicants or employees in order to determine an employee’s salary, employment or promotion.
Applicants or employees can voluntarily disclose their salary history for purposes of negotiating their compensation package with an employer. In that instance, an employer can verify salary history with the previous employer after an offer of employment has been extended to the applicant and the applicant has rejected it based on previous compensation.
The law also allows applicants or current or former employees to privately sue for violations and obtain injunctive relief and attorneys’ fees if they prevail.
Applicants or employees who believe they have experienced salary discrimination or who have been asked inappropriate questions regarding their salary history, should consult an experienced employment law attorney regarding their rights.
Employers in New York should also consult legal counsel in order to ensure compliance with the law and should take steps to update their on-boarding procedures and employment policies. In addition, employers should proactively review all employees’ job descriptions and salaries to confirm whether there may be some individuals or groups who perform substantially similar work and should be paid the same.