New York Follows New Jersey’s Lead in Adopting Laws to Combat Wage Inequality and Workplace Discrimination

On the morning of July 10, 2019, New York State Governor Andrew Cuomo signed new legislation into law providing protections for equal pay for women and increasing protections against race and gender based employment discrimination. The legislation was signed at the ticker-tape parade for the United States Women’s National Soccer Team, who won the World Cup on July 7th and have made headlines in recent months regarding gender-based pay disparity. The passage of these bills was a symbolic action of solidarity between New York State and the U.S. Women’s National Team, who filed an equal pay lawsuit in Federal Court earlier this year. After signing the legislation into law, Governor Cuomo stated, “We say to the U.S. Soccer League, and we say to FIFA, if you don’t pay women what you pay men, then you have no business in the state of New York.”

 

These three bills, signed this past summer, are part of a larger effort by the New York State to provide greater protections to employees in the state, aiming to prohibit employment discrimination based on gender and race. These laws will hopefully mark the development of a more employee-friendly workplace environment within the state. As New York is the third largest contributing state to America’s national GDP, such an improvement would be significant. New Jersey has also adopted significant employee-friendly legislation in the past two (2) years, including the New Jersey Equal Pay Act, the S121 Non-Disclosure Bill, Paid Sick Leave and amendments to the New Jersey Wage Payment and New Jersey Wage and Hour law. Following these enactments, New York’s similar enactments will serve to further enhance the protections for employees within both states, and across the region.

 

The first of two bills Governor Cuomo signed on July 10, Senate Bill 5248, prohibits wage differentials based on protected class status. It requires equal pay for substantially similar work when performed under similar working conditions. Similar to the New Jersey Equal Pay Act, the bill only allows for a differential rate of pay when it is based on a seniority or merit system, a system that measures earnings by quantity or quality, or a bona fide factor consistent with business necessity. Additionally, the bill lowers the burden of proof for a person claiming discrimination and provides a civil penalty for violations of the act. The stated purpose of the law is to prevent irrelevant factors – such as gender – from influencing employers in their salary distribution decisions. The passage of this law came after a wave of equal pay lawsuits have shaken governments across the United States. The bill will go into effect 90 days after its enactment.

 

The second of these laws will bolster the impact that Senate Bill 5248 will have on pay equality. Assembly Bill 5308-B will bar employers from inquiring about the past salary histories of their job applicants. It aims to ensure that applicants are offered salaries consistent with their merits, devoid of influence from discriminatory factors.  The bill further prohibits retaliation against employees or applicants who refuse to provide salary information. Unfortunately, and unlike a similar bill that was passed in New York City, this bill does not prevent employers from searching public records to find salary information. This essentially means that public employees such as those in governmental positions are not provided with as much protection as those in the private sector. The bill does not prohibit employees or applicants from voluntarily providing salary information. New Jersey has also recently adopted legislation that prohibits employers from requiring or even asking prospective employees about their salary history during the application process and/or during job interviews. Assembly Bill 5308-B will go into effect 180 days after enactment.

 

The final bill, Senate Bill S. 6209 extends these new employment protections to racial discrimination. The purpose of the bill is to provide more freedom and equality to African Americans in the workplace and serves to amend various sections of the per-existing state law regarding race-based discrimination. The new legislation adds a subdivision that includes the following language, “The term ‘race’ shall, for the purposes of this article, include traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” The bill defines protective hairstyles as those including braids, locks, and twists. The purpose of such a bill is to prevent employers from creating discriminatory policies justified by a requirement for “neatness” or other facially neutral objective, because such policies have historically disparately impacted African Americans. Going forward, employers will not be permitted to discriminate against employees based on such aspects of their appearance, allowing members of protected classes, and particularly African Americans, more security in their employment.

 

This legislation follows the guidance published by the New York City Commission on Human Rights in February 2019. Like this law, the guidance clarified that discrimination in employment or housing based on traditionally African American hairstyles was unlawful. For more information and further reading about the February 2019 guidance by the NYC CHR, see this blog’s post on the topic, New York City Bans Hair Discrimination. This is an emerging area of discrimination law, and has yet to be recognized at the federal level. There is currently proposed legislation in New Jersey that would follow New York’s lead in this area and specifically protect New Jersey employees from facing hair discrimination. While New Jersey has led the way in securing pay equality with the Diane B. Allen Equal Pay Act and other pro-employee laws, the hair discrimination laws show that New York is also committed to protecting workers discrimination and harassment and is not afraid of leading the charge on an important issue. This is a great sign for New Jersey employees as well, as it demonstrates a further commitment across the region to root out discrimination in all of its forms. Our New Jersey employment lawyers continuously monitor proposed legislation within the state and throughout the country to ensure that we provide our clients with the legal representation they are entitled to.