New York City Agencies Prohibited from Making Pay History Inquiries--For Now

By María Cáceres-Boneau and David M. Wirtz © Littler Nov 29, 2016

New York Mayor Bill de Blasio is engaged in a flurry of pre-election actions. (He is seeking re-election for a second term in 2017.) Most recently, he signed Executive Order 21, which prohibits New York City agencies from asking prospective employees about their salary history before making an offer of employment.  The order will take effect on Dec. 4.

It is aimed at bridging the wage gap for women and people of color, groups who are often paid less than white males for substantially similar work. 

The order prohibits inquiries about a job applicant's prior wages, salaries, benefits or other compensation.  A prospective employer may only make inquiries about previous salaries after the employer has extended the applicant a job offer with pay information. 

Though the order applies only to city agencies, Intro. 1253, a similar bill prohibiting public and private employers in New York City from inquiring into job applicants' salary histories, was introduced in the city council in August of this year.  Mayor de Blasio has announced his support for this bill, which is currently awaiting city council approval.

Executive Order 21 comes on the heels of pay equity laws passed by New York state and other municipalities and states.  New York state has adopted the "Achieve Pay Equity Law," which went into effect on Jan. 19 and amended the state Equal Pay Act to make it more difficult for employers to avoid liability. It changed the affirmative defense of "any factor other than sex" to "a bona fide factor other than sex, such as education, training and experience" that is job-related and consistent with "business necessity," so as to bear a manifest relationship to the employment in question.

An employer that cannot justify a pay differential between men and women in the same position with one or more of the four defenses can face back-pay liability for the pay differential, plus liquidated damages of 300%.

State Pay Equity Statutes

Another example is the "Act to Establish Pay Equity," signed into law in Massachusetts on Aug. 1 and effective July 1, 2018.  More extensive than both the proposed New York City law and the New York State law described above, that act prohibits employers from inquiring into the salary history of prospective employees and prohibits an employer from paying employees of one gender at a lower rate than the rate it pays employees of a different gender for "comparable work," unless the employer can meet its burden to prove one or more of the listed affirmative defenses, such as a bona fide seniority or merit system. 

"Comparable work" is defined as "work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions," and it expressly provides that "a job title or job description alone shall not determine comparability."

María Cáceres-Boneau and David M. Wirtz are attorneys with Littler in New York City. © Littler. All rights reserved. Reposted with permission.

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