The NY Working Woman's Pocket Guide

Am I covered?

Nearly all employees in New York State are covered by the equal pay law, with the exception of those who work for a government agency. If you are a government employee, you may have rights under certain federal or local laws.

How do I know if I’m being paid less?

• Ask a co-worker. Under New York law, your employer cannot prohibit you from openly discussing with or disclosing your salary to a co-worker or retaliate against you for sharing pay information with colleagues.
• Notice if you’re missing out on a bonus or pay increase that your male colleagues receive.
• Notice if you receive fewer benefits than male colleagues.
• Notice if you’re being passed over for a promotion to a male colleague who is less qualified.

What are excusable differences in pay and what are not?

Under a new law in New York, it is illegal to pay employees with status within one or more protected classes less than an employee without status within the same protected class or classes for equal work or “substantially similar work” based on a composite of skill, effort, and responsibility, and performed under similar working conditions.

• For instance, an employer can’t pay a Project Manager and a Project Team Lead or a janitor and a housekeeper differently if they perform “substantially similar work.”

What is a “protected class”?

“Protected class” includes 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 violence victim.

Employees can pay employees differently only if that difference is based on:

• A seniority system;
• A merit system;
• A system which measures earnings by quantity or quality of production; or
  A bona fide factor other than status within one or more protected classes, such as education, training, or experience.
• Any different in pay must be job-related and consistent with business necessity and cannot be derived from a wage differential based on status within a protected class.

Employers must affirmatively demonstrate that any pay differentials among employees who do the same or substantially similar work are based on one of the above-listed permissible reasons.

Consider the following examples:

• Employee A is a Black man. Employee B is a white man. Both work at Company Y, and both do the same job. Can Company Y pay them differently?
  • Probably not! The New York law applies to issues of pay disparity between sexes, but also to those that do not exclusively involve sex, but do involve a disparity in pay between a member of a different protected class and someone else doing the same or substantially similar work who is not a member of that protected class.
• Employee A is a Black woman. Employee B is a white woman. Both work at Company Y. They have different titles, but both of them have jobs that involve data analysis, building and implementing models, and running simulations.
  • Probably not! The New York law makes it illegal for employers to pay employees differently based on “substantially similar work,” with a few exceptions. Whether work is substantially similar is not based on job title—it’s based on a composite of skill, effort, and responsibility, and the similarity of working conditions.

Can my employer, or potential employer, ask me questions about my salary history?

A new law which applies to all public and private employees, but does not apply to independent contractors, makes it illegal for employers to:

• Rely on your salary history in deciding whether to offer you a job, or in determining your compensation for a new job.
• Ask for or require information about your past salary-orally or in writing-as a condition to be interviewed or as a condition of continuing to be considered for a new job.
• Ask for or require information about your current salary if you are being considered for a promotion
• Seek information about your past salary from your former employer, either
• Retaliate against you-including by refusing to interview, hire, promote, or otherwise employ you-based on your salary history. It is also illegal for them to retaliate against you for not providing your salary history or filing a complaint with the New York State Department of Labor alleging that they violated this law.

Nothing in this law prevents you from sharing your salary history with your employer or potential employer if you want to do so. An employer can’t prompt you to offer this information, but you can volunteer it if you wish.

• An employer can confirm your wage or salary history only if they have made you an offer of employment with compensation, and you respond to their offer by providing your prior wage or salary information in an effort to get the employer to offer you a higher wage or salary.

Do I have additional rights if I work in New York City?

Yes. Pay discrimination is also illegal under the New York City Human Rights Law. You are covered under this law if you work for an employer—private or government—with four or more employees.

A couple additional notes:

• These laws apply to you regardless of your immigration or citizenship status.
• The information listed in this section does not constitute legal advice. It is always advisable to consult with an attorney about your individual circumstances if you have questions or think your rights as a worker have been violated.