NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6707
SPONSOR: Galef TITLE OF BILL: An act to amend the executive law, in relation to
prohibiting employers from seeking salary history from prospective
employees
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this legislation is to prohibit employers from seeking
salary history from prospective employees.
SUMMARY OF PROVISIONS:
Section 1. Adds a new subdivision 20 to Section 296 of the Executive
Law. 20. (a) No employer, labor organization, employment agency or
licensing agency, or employees or agent shall: (i) rely on wage history
in determining wages unless voluntarily provided by the prospective
employee for their benefit; (ii) request or require a prospective
employee to disclose information about their wage history as a condition
of being interviewed; (iii) seek from any current or former employer the
previous wages of any prospective employee unless a compensation offer
has been made, and the prospective employee provides wage information to
support a wage higher than offered. The employer shall not refuse to
hire or retaliate against a prospective employee based on their wage
history or because they opposed any act or practice made unlawful by
this subdivision. (b) Violation of this section is subject to a civil
penalty of $5,000 for a first offense, increased by an additional $1,000
for each subsequent offense, not to exceed $10,000; and liable to each
violated prospective employee their attorneys' fees and special damages
not to exceed $10,000, with an action to recover the liability against
any employer in any court of competent jurisdiction. (c) The Department
of Labor shall establish a public awareness campaign informing employers
in the state that is is illegal to seek salary information from prospec-
tive employees.
Section 2. This act shall take effect on the 180 day after it shall have
become a law.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): This
is not applicable at this time.
JUSTIFICATION:
Despite numerous New York State legislative and executive protections,
the federal Equal Pay Act of 1963, Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act of 1967, and Title I of
the Americans with Disabilities Act of 1990 that prohibit discrimination
in the payment of wages, there remains a very real and pervasive pay gap
that affects all women, and many minority and disabled groups. The sala-
ry history inquiry, a longstanding bulwark of employers and hiring
managers during the job hiring process, is a pervasive form of discrimi-
nation that is thought to be reasonable without its initiators fully
realizing its negative and biased effect.
A worker's salary history follows them throughout the course of their
career. Low pay at an earlier job can affect salary at a later one as
hiring managers often base their offers on previous wage compensation.
Even seasoned or strong negotiators will find themselves with lower
offers than individuals who earned more at an earlier position. Histor-
ically, workers who receive lower offers are women and minorities.
While many factors contribute to the gender pay gap, including occupa-
tional segregation, patterns of work or even direct or indirect discrim-
ination, the disparity in earnings between women and men from the 2015
U.S. Census Bureau is hard to ignore. U.S. women working full time,
year-round were paid just 80 percent of U.S. men's median earnings - a
gap of 20 percent. In New York, that number was slightly better with an
89 percent median earnings ratio between genders - yet a gap still
remains and can hardly be considered equal pay for equal work.
Although the gender pay gap has narrowed over time, according the Ameri-
can Association of University Women (AAUW), women are not expected to
reach pay equity until 2059. If change continues at a slower growth rate
seen since 2001, the pay gap is not expected to close until 2152.
Minority groups and people with disabilities face even larger pay gaps.
For women of color, African American women in New York earn on average
66 cents on the dollar to non-Hispanic white men, while Hispanic women
earn just 56 cents comparably. Asian American women fare better at 80
cents to that same dollar. However, the 2015 American Community Survey
(ACS) by the U.S. Census Bureau found that both women and men of most
racial minority groups were paid substantially less than non-Hispanic
white workers. The ACS also shed light on earnings of people with disa-
bilities. Those with disabilities made just 68 percent of what those
without earned while within this population subset, there exists a large
gender pay gap - median pay for women is 69 percent of that for men.
In the long-term, lower career wages result in an even greater disparity
in retirement income, namely through smaller Social Security benefits
which are calculated based on an individual's earning history. Median
income for women 65 years or older is 44 percent less than the median
income for men in the same age group. Women who are 75 years or older
are almost twice as likely as men to live in poverty.
If this disparity begins at the onset of a career and is allowed to
perpetuate, then the pay gap itself will never be rectified. This legis-
lation would further protect prospective and current employees through-
out New York from intentional and unintentional discrimination and would
be a monumental move in the direction of pay equity for all.
PRIOR LEGISLATIVE HISTORY:
This is new legislation.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
There are no fiscal implications associated with the passage of this
legislation.
EFFECTIVE DATE:
This act shall take effect on the 180 day after it shall have become a
law.
STATE OF NEW YORK
________________________________________________________________________
S. 5233 A. 6707
2017-2018 Regular Sessions
SENATE - ASSEMBLY
March 16, 2017
___________
IN SENATE -- Introduced by Sen. CARLUCCI -- read twice and ordered
printed, and when printed to be committed to the Committee on Investi-
gations and Government Operations
IN ASSEMBLY -- Introduced by M. of A. GALEF -- read once and referred to
the Committee on Governmental Operations
AN ACT to amend the executive law, in relation to prohibiting employers
from seeking salary history from prospective employees
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 296 of the executive law is amended by adding a new
2 subdivision 20 to read as follows:
3 20. (a) No employer, labor organization, employment agency or licens-
4 ing agency, or employees or agent shall:
5 (i) rely on the wage history of a prospective employee from any
6 current or former employer of the individual in determining the wages
7 for such individual; provided that an employer may rely on prior wage
8 history when it is voluntarily provided by a prospective employee to
9 support a wage higher than the wage offered by the employer;
10 (ii) orally, or in writing, request or require as a condition of being
11 interviewed, or as a condition of continuing to be considered for an
12 offer of employment, or as a condition of employment, that a prospective
13 employee disclose information about the employee's own wages from any
14 current or former employer; and
15 (iii) orally, or in writing, seek from any current or former employer
16 the previous wages of any prospective employee; provided, however, that
17 an employer may seek to confirm prior wage information only after an
18 offer of employment with compensation has been made to the prospective
19 employee and the prospective employee responds to the offer by providing
20 prior wage information to support a wage higher than offered by the
21 employer. Under these circumstances, the employer may only seek to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10209-02-7
S. 5233 2 A. 6707
1 confirm prior wages after obtaining written authorization by the
2 prospective employee to do so.
3 The employer shall not refuse to hire or otherwise retaliate against
4 an employee or prospective employee based upon prior wage or salary
5 history or because the employee or prospective employee has opposed any
6 act or practice made unlawful by this subdivision.
7 (b) (i) Any person who violates the provisions of this section shall:
8 (A) be subject to a civil penalty of five thousand dollars for a first
9 offense, increased by an additional one thousand dollars for each subse-
10 quent offense, not to exceed ten thousand dollars; and
11 (B) be liable to each employee or prospective employee who was the
12 subject of the violation for special damages not to exceed ten thousand
13 dollars plus attorneys' fees, and shall be subject to such injunctive
14 relief, or lost wages, as may be appropriate.
15 (ii) An action to recover the liability described in clause (B) of
16 subparagraph (i) of this paragraph may be maintained against any employ-
17 er in any court of competent jurisdiction by any one or more employees
18 or prospective employees for and in behalf of himself, herself or them-
19 selves and other employees similarly situated.
20 (c) The department of labor, in conjunction with the New York state
21 division of human rights, shall establish a public awareness campaign,
22 to be publicly posted on their respective websites, informing employers
23 in the state that it is illegal to seek salary information from prospec-
24 tive employees. Every employer shall notify prospective employees, in
25 writing, of their rights provided under this section.
26 § 2. This act shall take effect on the one hundred eightieth day after
27 it shall have become a law.
