New York State’s Latest Push to Broaden Salary History Ban

New York Governor Andrew M. Cuomo continues his push to address the gender pay gap in New York. The latest is the release of a Department of Labor report commissioned by the Governor that recommends legislation barring all employers, public and private, from asking or searching for prospective employee’s salary history.

In January 2017, the Governor signed two Executive Orders taking aim at the use of salary history to set wages for state employees and employees of state contractors:

“We will advance women’s rights and equal pay by adopting salary history blind hiring practices and requiring all state contractors to report employees’ gender and pay.”

  • Executive Order #161 Will Prohibit State Entities from Evaluating Prospective Candidates Based on Prior Wage History
  • Executive Order #162 Will Require State Contractors to Disclose Gender, Race, Ethnicity, Salary of all Employees to Drive Transparency and Progress Toward Wage Equity

In particular, Executive Order 162, which took effect in June 2017, requires state contractors to provide job title and salary data for each employee working on a state contract, or the job titles and salaries of all contractor employees if the contractor cannot identify the specific employees working directly on the contract. State contractors can learn more about their salary reporting obligations under Executive Order 162 here.

Based on the April 2018 report from the Department of Labor, the Governor is supporting legislation to expand the salary history inquiry ban to private employers. Significantly, the Report recommends passage salary history ban that:

[p]rohibits all employers, public and private, who do business in New York State from asking prospective employees about their salary history and compensation. In addition, bar employers from searching public records to discover this information. If women are already being paid less for working the same jobs and being just as productive as men, this will halt the compounding nature of the gender wage gap to cover all public and private employers doing business in New York State.

A pending bill broadly prohibits all employers from:

  • Relying on salary history in determining a prospective employee’s wages;
  • Requesting salary history information from prospective employees, employees, and current or prior employers;
  • Refusing to interview, hire, or promote a prospective or current employee based on salary history; and
  • Retaliating against a prospective or current employee for declining to provide salary history or who has filed a complaint alleging a violation of these prohibitions.

This follows increasing scrutiny on the use of salary history in setting starting pay all across the country, including a number of state and local laws banning salary history inquiries. For more information and to track compliance with salary history bans, please follow our blog.

Localities and the Salary History Ban: Next Stop, Westchester County, New York

New York’s Westchester County is the latest locality to adopt legislation prohibiting employers from asking prior salary histories of a prospective employee. Click here to read our full article regarding Westchester County’s salary history ban.

NJ Governor Poised to Enact Equal Pay Act

On April 24, 2018, New Jersey Governor Phil Murphy plans to sign the Diane B. Allen Equal Pay Act (the “Act”) into law. Senate Bill S-104, reintroduced in this legislative session, contains sweeping changes to the New Jersey Law Against Discrimination (LAD), including, among other items, a prohibition against discrimination with respect to compensation or financial terms of employment on the basis of a protected trait, a six-year statute of limitations, and treble damages against any business that violates the Act. Click here to read our full article regarding the NJ Equal Pay Act.

Salary History Not a Defense against Equal Pay Act Claims, According to 9th Circuit

Prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act, the U.S. Court of Appeals for the Ninth Circuit has held in an en banc decision. Click here to read our full article regarding the 9th Circuit’s decision.

In Time for Equal Pay Day, Report Indicates Wage Gap Persists in Nearly Every Occupation

The National Women’s Law Center (NWLC) has published a report based on the most recent U.S. Census Bureau data showing that women earn 80 cents for every dollar paid to their male counterparts across 97% of occupations.

The report finds the wage gap is due in part to the fact that women are overrepresented in low-wage jobs, and underrepresented in high-wage jobs. Even when comparing women and men in the same occupations, the report finds women are still paid less than men doing the same jobs in nearly every sector of work.

In low-wage jobs, such as waitresses, waiters, janitors, maids, and childcare workers, women make 71 cents for every dollar paid to men. In higher-wage occupations, such as lawyers, engineers, and physicians, women make 75 cents for every dollar paid to men in the same occupations. This report analyzes the wage data across occupations without reference to geography, experience, or other potential non-gender related reasons for the pay gap.

NWLC uses this data to calculate the day each year that women have to work to make what men did in the previous 12-month calendar year, commonly referred to as “Equal Pay Day.” This year, Equal Pay Day will be on April 10.

The Jackson Lewis Pay Equity Resource Group will keep you informed on this and related informational initiatives.

A Ban on Salary History Bans: Michigan Bars Local Governments from Prohibiting Such Inquiries

On March 26, 2018, Michigan Governor Rick Snyder signed a bill that prevents local governments from regulating the questions employers may ask of applicants during job interviews. The bill amends a 2015 law that prohibited local governments from banning salary history inquiries on job applications.

With this amendment, Michigan essentially has blocked local governments from instituting regulations that would prohibit employers from asking job applicants for salary history information. At the time of the bill’s signing, no municipality in the state had proposed an ordinance restricting pre-employment inquiries into salary history. Proponents of the bill contend that asking about an applicant’s past or current salary is a standard business practice and assists employers in budgeting. Opponents argue that soliciting salary history can perpetuate discriminatory pay gaps.

The new law goes against the tide of the growing number of states and municipalities that have enacted or proposed legislation limiting a prospective employer’s ability to obtain and use salary history information prior to an offer of employment. California, Delaware, Massachusetts, Oregon, Puerto Rico, Albany County (New York), New York City, and San Francisco have enacted salary history bans. Similar proposed legislation is pending in at least 14 other states.

Michigan may not hold for long the distinction of being the lone state to affirmatively resist “following the crowd” of jurisdictions with bans on salary history inquiries. Wisconsin is poised to pass similar legislation preempting local bans on salary history questions. The Wisconsin legislature has passed a preemption measure that includes a ban on salary history inquiry bans, sending the bill to the state Senate. Wisconsin Governor Scott Walker is expected to approve the bill if it is sent to him.

Our Pay Equity Resource Group will keep you updated on significant developments in this area.

EPIC: International Coalition on Equal Pay Takes Flight

The fight for equal pay transcends country borders. International consensus on closing the pay gap took a significant step when, in late-2017, during a United Nations General Assembly meeting, the International Labor Organization (ILO), United Nations Women, and the Organization of Economic Cooperation and Development (OECD) launched a global partnership focused solely on pay equity – the Equal Pay International Coalition (EPIC).

Charged with closing the gender pay gap by 2030, EPIC presents a new intergovernmental and multi-stakeholder approach to address pay disparities worldwide. 

In its concept note, EPIC states that it aims to be an “engagement platform for collaborative global, regional and national action that will be supported through advocacy, knowledge sharing, capacity building, workshops and conferences, technical advisory services, data analysis and monitoring.” It plans to aid legislative change and enforcement of equal pay initiatives at the national level and engage with civil society leaders for change from the bottom up.

While only in its early stages, EPIC has launched at regional levels across the globe. EPIC held its first stakeholder meeting in Berlin. It then officially launched in Latin America and the Caribbean and came out in Asia and the Pacific at a conference on Women and the Future of Work – all in roughly six months!

This showing of international consensus on closing the gap acts to underscore the movements to come, especially given the international forum to support these initiatives. Equal pay legislation already passed in the United States, the United Kingdom, and other nations and localities. Jackson Lewis will keep you abreast of significant developments.

Washington State Legislature Sends Comprehensive Pay Equity Bill to Governor

The Washington Legislature has sent Governor Jay Inslee a proposed Act that would significantly broaden the state’s Equal Pay and Opportunity Act. The Governor is expected to approve it.

Pay Equity and Gender

Following Title VII principles, the Act defines “similarly employed” as jobs requiring “similar skill, effort, and responsibility… performed under similar working conditions.” Pay differences may be based on other job-related, bona fide factors, such as “education, training or experience; a seniority system; a merit system … [or] regional differences in compensation levels.”  An employer must explain the entire pay differential.

The Act replaced the term “sex” with “gender.” Accordingly, LGBTQ employees also appear to be protected from pay discrimination under the Act.

Salary History

Salary history is not a defense to a claim of inequitable pay. While the Act does not expressly prohibit salary history inquiries, the value of such inquiries seems greatly diminished under the Act. Setting pay, even in part, according to an applicant’s salary history would leave an employer vulnerable to claims.

Inequality in Advancement Opportunities

Employers may not “limit or deprive” an employee of otherwise available advancement opportunities based on gender. An isolated incident is insufficient support for a claim. The employer must be found to have committed a pattern of violations as to the employee or committed a violation through application of a formal or informal employer policy or practice.”

Pay Transparency and Retaliation

Employers may not:

  • Require employees to enter any non-disclosure or waiver agreement, preventing them from disclosing their pay; or
  • Retaliate against an employee who asks about, discloses, or discusses pay; asks the employer to explain her pay or lack of advancement opportunities, or aids or encourages another employee to pursue her rights under the Act.

The Act does not apply to applicants who inquire about pay during the application process or ask current employees about their pay.

Other Provisions

Employees may bring direct lawsuits against their employers. Suits must be brought within 3 years of an alleged violation. A violation occurs when a discriminatory decision is made, when an employee becomes subject to the decision, or when the employee is affected by the decision. Such violations occur “each time wages, benefits or other compensation is paid” as a result of a discriminatory decision or practice. Based on an employee complaint, the Department of Labor and Industries must investigate the complaint.

Whether the claim is brought directly by an individual employee or by the Department, an employer may be liable for actual or statutory damages up to the greater of actual damages or $5,000, plus 1% interest per month on all compensation owed, costs, and reasonable attorneys’ fees. Actual damages may date back to 4 years prior to the last violation prior to the filing of the lawsuit. The Act also calls for civil penalties of up to $500 for the first violation and the greater of $1,000 or 10% of actual damages for each subsequent violation.

A Look at the Massachusetts AG’s Office Guidance on Equal Pay Law

As posted last week, on March 1, 2018, the Massachusetts Office of the Attorney General issued its much anticipated guidance on the state’s new pay equity law, set to take effect on July 1, 2018. The Attorney General’s Guidance does not have the legal force of a regulation but provides clear insight into how the Attorney General’s Office views and will enforce the law.  Click here to read our full article outlining the AG’s Office Guidance and the implications for employers.

Massachusetts Attorney General’s Office Publishes Guidance On Pay Equity Law

Today, the Massachusetts Attorney General’s office published its long-awaited guidance on Massachusetts’ new pay equity law, which is effective July 1, 2018.  The guidance addresses a number of frequently asked questions and further provides guidance for employers on conducting “self-evaluations” of pay practices.  A link to the Attorney General’s guidance is found here.  Jackson Lewis attorneys are reviewing the guidance and will publish a more detailed analysis shortly.

Previous Jackson Lewis articles on the Massachusetts pay equity law can be found as follows:

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