Defines "protected class"; prohibits wage or salary history inquiries; relates to the prohibition of a differential rate of pay on the basis of protected class status.
STATE OF NEW YORK
________________________________________________________________________
5173
2019-2020 Regular Sessions
IN SENATE
April 12, 2019
___________
Introduced by Sen. BIAGGI -- read twice and ordered printed, and when
printed to be committed to the Committee on Investigations and Govern-
ment Operations
AN ACT to amend the executive law, in relation to prohibiting wage or
salary history inquiries; and to amend the labor law, in relation to
the prohibition of a differential rate of pay on the basis of
protected class status
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 296 of the executive law is
2 amended by adding a new paragraph (h) to read as follows:
3 (h) (i) For an employer or employment agency in writing or otherwise,
4 to rely on, or inquire about, the salary history information of an
5 applicant for employment as a factor in determining whether to offer
6 employment to an applicant or what salary to offer an applicant. Nothing
7 in this subdivision shall prevent an applicant from voluntarily and
8 without prompting disclosing salary history information to a prospective
9 employer. If an applicant volunteers salary history information, nothing
10 shall prohibit that employer from considering or relying on that infor-
11 mation. Nothing in this subdivision shall prohibit an employer, without
12 inquiring about salary history, from engaging in discussion with the
13 applicant about their expectations with respect to salary, benefits, and
14 other compensation.
15 (ii) For the purposes of this paragraph, "employer" shall include but
16 not be limited to any person, corporation, limited liability company,
17 association, labor organization, or entity employing any individual in
18 any occupation, industry, trade, business or service. For the purposes
19 of this paragraph, the term "employer" shall include the state, any
20 political subdivision thereof, any public authority or any other govern-
21 mental entity or instrumentality thereof, and any person, corporation,
22 limited liability company, association or entity acting as an employment
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10298-03-9
S. 5173 2
1 agent, recruiter, or otherwise connecting prospective employees with
2 employers.
3 § 2. The section heading and subdivision 1 of section 194 of the labor
4 law, the section heading as added by chapter 548 of the laws of 1966 and
5 subdivision 1 as amended by chapter 362 of the laws of 2015, are amended
6 to read as follows:
7 Differential in rate of pay because of [sex] protected class status
8 prohibited. 1. "Protected class" includes the list of categories
9 protected from discrimination pursuant to paragraph (a) of subdivision
10 one of section two hundred ninety-six of the executive law.
11 1-a. No employee who is a member of a protected class shall be paid a
12 wage at a rate less than the rate at which an employee [of the opposite
13 sex] who is not a member of the protected class in the same establish-
14 ment is paid for [equal work on a job the performance of which requires
15 equal skill, effort and responsibility, and which is performed under
16 similar working conditions] substantially similar work, when viewed as a
17 composite of skill, effort, and responsibility, and performed under
18 similar working conditions, except where payment is made pursuant to a
19 differential based on:
20 a. a seniority system;
21 b. a merit system;
22 c. a system which measures earnings by quantity or quality of
23 production; or
24 d. a bona fide factor other than [sex] the protected class status,
25 such as education, training, or experience. Such factor: (i) shall not
26 be based upon [or derived from] a [sex-based] differential in compen-
27 sation that was originally derived from a protected class status and
28 (ii) shall be job-related with respect to the position in question and
29 shall be consistent with business necessity. Such exception under this
30 paragraph shall not apply when the employee demonstrates (A) that an
31 employer uses a particular employment practice that causes a disparate
32 impact on the basis of [sex] protected class status, (B) that an alter-
33 native employment practice exists that would serve the same business
34 purpose and not produce such differential, and (C) that the employer has
35 refused to adopt such alternative practice.
36 § 3. This act shall take effect on the one hundred eightieth day after
37 it shall have become a law.