New York Enacts New Equal Pay Protections

New Equal Pay Protection Laws for Female Workers in New York Will Take Effect in a Few Days

This fall, New York Governor Andrew Cuomo signed a series of bills into law that will dramatically increase the equal pay and gender discrimination protections for female workers in the state. For New York employers, it is important to be aware that many of the changes under these laws become effective in the New Year. Further, it should be clear that Employers would be well advised to engage in a careful analysis of its equal pay practices and other policies to insure that all new requirements are addressed.

New York Labor Law (NYLL) § 194 will undergo the most substantive changes under the package of equal pay bills. The statute previously allowed employee pay differentials based on “any other factor other than sex.” Under the amendment, differentials may be based upon “a bona fide factor other than sex, such as education, training, or experience.” Employers must be prepared to affirmatively demonstrate that any such differential is job related and “consistent with business necessity.”

In addition, employers will not be able to rely on the “factor other than sex” defense if the employee can prove that:

• The employer’s practices cause a disparate impact on the basis of sex;
• An alternative employment practice would have served the same business purpose without disparate impact; and
• The employer refused to adopt the alternative practice.

Changes to the NYLL also address confidentiality provisions governing wages. Under the revised New York employment law, no employer may prohibit “an employee from inquiring about, discussing, or disclosing the wages of such employee or another employee.” However, businesses may place reasonable “limitations on the time, place and manner for inquiries about, discussion of, or the disclosure of wages.”

The equal pay revisions also make clear that equal pay analysis must include work in different locations by expanding the definition of “same establishment” to include “workplaces located in the same geographical region, no larger than a county.” Lastly, the amendments increase the cost of willfully violating the equal pay law by increasing liquidated damages liability to 300 percent of the total amount of wages owed.

Below is a brief review of several other key legal changes signed into law:

• Sexual Harassment One of the new laws expands the definition of “employer” to cover all employers within New York in sexual harassment cases. Previously, the definition of “employer” excluded businesses with fewer than four employees, thereby prohibiting individuals from filing harassment complaints with the Division of Human Rights against those employers.
• Pregnancy Discrimination Under amendments the Human Rights Law, New York employers with four or more employees would be required to provide reasonable accommodations for pregnant employees. The new law clarifies that employers must perform a reasonable accommodation analysis for employees with a “medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”
• Family Status Further amendments to the HRL add familial status as a protected characteristic. Accordingly, the law now prohibits employment agencies, licensing agencies, or labor organizations from discriminating against workers based on their familial status.
• Attorneys Fees Finally, another bill signed into law allows successful plaintiffs to recover attorneys’ fees in employment or credit discrimination cases based on sex.

The new laws become effective on January 19, 2016. Accordingly, New York employers should review their policies and procedures to verify that they are in compliance and make any necessary changes as soon as possible.