The Lawyer’s Desk: By Patricia M. Mulligan, Esq.
According to 2015 U.S. Census Bureau data, women earn approximately 80 cents on the dollar compared to their male counterparts. Women of color make 64 cents to every white male dollar, while Latina women make 54 cents, according to the Bureau of Labor Statistics.
These pay disparities are alarming and have recently been redressed by enhanced legislative action at the state level, and locally, in New York City.
NYS Labor Law §194 makes it unlawful for an employer to pay an employee less than an employee of the opposite sex for equal work that requires equal skill, effort and responsibility performed under similar working conditions. Employers are also prohibited from restricting the ability of employees to inquire or discuss wages with their co-workers.
New York City recently passed legislation making it an unlawful, discriminatory practice for an employer to inquire about or rely upon the salary history of a job applicant to determine their salary amount during the hiring process, including during contract negotiation. Salary history includes such things as: current or prior wage rate; salary, benefits, or other forms of compensation. The law does not, however, prohibit employers from discussing with an applicant his or her expectations about compensation and benefits.
Employees: These new laws focus on pay inequality between the sexes. If you work in New York City, or are considering seeking employment there, then know that a prospective employer cannot ask you about your prior salary, thus eliminating the likelihood that any salary offer will be based on salary history, rather than ability and merit. Further, under State law, you are now free to discuss wages with your co-workers, which will help you better assess if you are being paid less than an employee of the opposite sex for equal work. This applies to supervisors and managers as well. Retaliation is unlawful.
Employers: One key way to avoid exposure to lawsuits is to conduct a pay audit examining all positions, their respective job duties and the compensation paid to the employee holding the position. If disparities are found in positions requiring similar skill, effort and responsibility, then corrective action may be necessary to avoid liability. Also, during the application and interview process, do not ask applicants how much they make. Instead, ask for their desired pay, which is legal. Employers should also consider implementing formal pay scales and increases which help guard against unlawful pay disparities. Conducting a compensation analysis and determining which corrective measures may be needed is not for the inexperienced. Consult your labor and employment counsel and set the proper foundation for doing business, i.e., one that does not expose you to costly liability under these new laws.
Damages: Under NYS law, an employee may seek wages and interest, plus an equal amount in liquidated damages. If a violation is found to be willful, then employees may be awarded up to 300% of wages found due. Significantly, employees who prevail on NYS pay equity claims may also be awarded reasonable attorneys’ fees, which the employer must then pay. Under the NYC law, employers found to have willfully violated the law could be subject to, among other things, penalties up to $250,000.00.
If you have a question concerning your rights under these new laws, or are an employer seeking to conduct a compliance review of your compensation practices to mitigate against any liability, please do not hesitate to contact our office.
This article is written by a member of the Oxman Law Group, PLLC (www.oxmanlaw.com). Any comments or inquiries are welcome and can be directed to Marc Oxman at 914-422-3900 or moxman@oxmanlaw.com.
