On July 10, 2019, New York Gov. Andrew Cuomo signed into law two bills amending the New York Labor Law, with significant implications for employers in the state. One law implements a statewide prohibition on salary history inquiries and the other amends New York’s equal pay law to cover all protected classes and changes the standard for proving an equal pay violation from “equal to” to “substantially similar to.”
The key provisions of each new law are described below, followed by the key issues and takeaways for employers. In short, employers should expect an uptick in pay equity enforcement actions and litigation. To potentially avoid and in any event better defend against such litigation, and given new federal reporting requirements, employers should consider conducting privileged pay equity audits. Finally, employers should take the opportunity to review application materials to remove references to salary history and train interviewers to avoid salary history inquiries.
Statewide Salary History Inquiry Prohibition
The first new law amends the NYLL to prohibit the use of salary history in employment decisions, mirroring an existing ban in force in New York City. The law makes it a violation of the NYLL for an employer to rely on or inquire about the salary history of a job applicant as a factor in determining (a) whether to hire the applicant or (b) what salary to offer the applicant.
The law further prohibits employers from (a) seeking, requesting, or requiring the disclosure of salary history of job applicants or current employees as a condition of consideration for employment, an offer of employment or an offer of promotion; (b) seeking, requesting, or requiring the disclosure of salary history of job applicants or current employees from a current or former employer or any of their agents; or (c) refusing to consider for employment, hire, or promote an applicant or current employee who does not provide his or her salary history.