UPDATE: Governor Andrew Cuomo signed the bill into law on July 10, 2019.  The law will take effect on October 8, 2019.

The New York State legislature has passed a bill that, if signed by Governor Andrew Cuomo, will expand pay protections by requiring employers to provide employees with equal pay for “substantially similar” work across all protected categories under the New York State Human Rights Law (NYSHRL).

Currently, the New York Equal Pay Act provides that no employee shall be paid at a lesser wage rate than an employee of the opposite sex in the same establishment for equal work on a job requiring equal skill, effort and responsibility, and performed under similar working conditions.  As we previously reported, the Equal Pay Act was last amended in 2015 by the Achieve Pay Equity law, which, among other things, narrowed the defenses available to employers facing a claim of gender-based wage discrimination by requiring that they show, among other non-discriminatory reasons for the wage differential, a “bona fide factor such as education, training or experience” that supports the difference in pay (previously, an employer need only show that the differential was based on any “factor other than sex”).

The recently passed bill would further broaden protections under the Equal Pay Act by requiring that no employee who falls into any one or more protected classes under the NYSHRL (not just sex) be paid a wage at a rate less than the rate at which an employee outside the same protected class in the same establishment is paid for either equal work (as defined above) or  “substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions.”

Thus, protections against discriminatory pay differences would be provided to employees based not only on sex, but also on their age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status or domestic violence victim status.  Further, the law would in fact lessen the burden on employees to prove wage discrimination by requiring employers to ensure equal pay for “substantially similar” work, and not just “equal” work.

Employers would still be able to demonstrate that differentials in pay are justified by a seniority system, merit system, a system which measures earnings by quantity or quality of production; or a bona fide factor such as education, training or experience.  However, as is presently the case under the law, employees may still prevail on a claim if they can demonstrate that: (i) the employer’s practice causes a disparate impact on the basis of a protected class; (ii) a viable alternative practice exists that would remove the wage differential and serve the same business purpose; and (iii) the employer refused to adopt the alternative practice.

Under the recently passed bill, the state Labor Department would be authorized to assess penalties for differential pay rates tied to protected classes up to $500 for each violation.  And, as is true now, employees can bring suit for discriminatory pay differentials and seek liquidated damages of up to 300 percent on unpaid wages for willful violations of the law, as well as attorneys’ fees.

If signed by the Governor, the law will take effect on the ninetieth day after it is enacted.

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Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Evandro Gigante Evandro Gigante

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the…

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the Employment Litigation group, and co-head of the Counseling, Training & Pay Equity group, he represents clients on a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. In addition, Evandro handles restrictive covenant matters, including non-compete, non-solicitation and trade secret disputes. Evandro also counsels employers through the most sensitive employment issues, including matters involving employer diversity, equity and inclusion initiatives.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases before juries and arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in professional services, including law firms, financial services, including private equity and hedge funds, higher education, sports, media, retail, and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.