BY KATHRYN MARTIN, ATTORNEY

New York State continues to strengthen its pay equity laws with two recent changes to the New York Labor Law. Expanding unequal pay beyond gender, the New York Labor Law now prohibits unequal pay based on all protected characteristics, including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic victim status. The amendment goes one step further by expanding the concept of “equal pay for equal work” to equal pay for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar conditions.” What constitutes “substantially similar work” will undoubtedly be a fact-driven analysis that will lead to more claims and litigation.

In an effort to close the wage gap for women and people of color, employers are also prohibited from soliciting and using salary histories of a candidate or employee to make hiring decisions or to set compensation. Matching New York City’s law enacted in 2017 prohibiting salary history inquiries, this change in the law reflects New York State’s effort to break the cycle of suppressed salaries of women and people of color and further address pay disparity. The law also prohibits an employer from retaliating against an applicant or employee for refusing to disclose their salary history or for making a complaint regarding a possible violation.