This new law amends Section 194 of the New York Labor Law, which prohibits pay differentials based on gender in jobs requiring “equal skill, effort and responsibility,” which are “performed under similar working conditions.”
While you may think that because current State and federal laws already require equal pay without regard to gender; this new legislation adds muscle to the prohibitions set out in Section 194.
The legislation strengthens the “any other factor other than sex” defense with “a bona fide factor other than sex, such as education, training or experience.” The factor must also be job-related and consistent with business necessity. The burden is on the employer to prove the existence of this bona fide factor – not on the employee to prove discriminatory motive, as may be the case in other employment discrimination-related litigation.
The new law also provides employees the right to openly inquire about, disclose and discuss their wages. Employers cannot prohibit these conversations. An employer may only establish and distribute a written policy containing “reasonable workplace and workday limitations on the time, place and manner” for these discussions. While the new law contains some exceptions, remember that the National Labor Relations Board has already taken the position that Section 7 of the National Labor Relations Act gives employees in union and non-union settings the right to discuss wages and other working conditions with co-workers.
Lastly, it provides for dramatic increases in penalties for violation, including the potential for an award of liquidated damages in the amount of 300 percent of the wages owed in addition to making the employee whole for any unlawful difference in pay.
In light of the above, it is critical that employers throughout the State continue to carefully review their practices to ensure compliance with New York Labor Laws.