NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8093A
SPONSOR: McMahon TITLE OF BILL: An act to amend the labor law, in relation to prohib-
iting wage differentials based on protected class status
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to protect more employees against pay
discrimination.
SUMMARY OF PROVISIONS:
Section one of the bill would expand existing pay equity provisions to
require equal pay for substantially similar work, when viewed as a
composite of skill, effort, and responsibility, and performed under
substantially similar working conditions. It would also prohibit pay
differentials based on an individual's status within one or more
protected class or classes. This would include age, race, creed, color,
national origin, sexual orientation, gender identity and expression,
military status, disability, predisposing genetic characteristics, fami-
lial status, marital status, domestic violence victim status, and other
employees and interns protected under the New York State Human Rights
Law.
A differential in rate of pay would be permitted when such differential
is based on a seniority or merit system, a system measuring earnings by
quantity and quality, or bona fide factor other than status within one
or more protected class or classes which is job-related and consistent
with business necessity.
Section 2 of the bill would authorize the New York State Department of
Labor to assess a civil penalty for a differential in rate of pay
because of protected class status.
Section 3 of this bill would set forth an effective date of 90 days
after enactment.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
The amended version makes a conforming change to § 197 of the Labor Law
to ensure that civil penalties can be assessed for a differential in
rate of pay because of protected class status.
JUSTIFICATION:
In New York State, our current equal pay laws protect against gender-
based pay discrimination. This bill would address the systemic issue of
pay discrimination due to a range of other factors - including age,
race, creed, color, national origin, sexual orientation, gender identity
and expression, military status, disability, predisposing genetic char-
acteristics, familial status, marital status, and domestic violence
victim status - by prohibiting differentials in pay based on an employ-
ee's protected class status. These employees are already protected
against other forms of unlawful discrimination in the workplace under
the New York State Human Rights Law, and this would ensure that their
employers cannot also discriminate in terms of their compensation.
Further, the "equal pay for equal work" standard has proved to place an
excessive burden of proof on aggrieved employees when filing a claim for
pay discrimination. In order to establish an equal pay violation, an
employee must demonstrate that their job is substantially equal to the
job of their higher-paid colleague. This bill would lessen this burden
by requiring employers to also ensure equal pay for "substantially simi-
lar work," while still acknowledging that differentials in pay may exist
based on non-discriminatory factors such as seniority, merit, geography,
the quantity or quality of work, or an employee's education, training,
or experience.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after enactment.
STATE OF NEW YORK
________________________________________________________________________
8093--A
2019-2020 Regular Sessions
IN ASSEMBLY
May 31, 2019
___________
Introduced by M. of A. McMAHON, COLTON -- read once and referred to the
Committee on Labor -- reported and referred to the Committee on Ways
and Means -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the labor law, in relation to prohibiting wage differen-
tials based on protected class status
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The section heading and subdivisions 1 and 2 of section 194
2 of the labor law, the section heading as added by chapter 548 of the
3 laws of 1966, subdivision 1 as amended and subdivision 2 as added by
4 chapter 362 of the laws of 2015, are amended to read as follows:
5 Differential in rate of pay because of [sex] protected class status
6 prohibited. 1. No employee with status within one or more protected
7 class or classes shall be paid a wage at a rate less than the rate at
8 which an employee [of the opposite sex] without status within the same
9 protected class or classes in the same establishment is paid for: (a)
10 equal work on a job the performance of which requires equal skill,
11 effort and responsibility, and which is performed under similar working
12 conditions, or (b) substantially similar work, when viewed as a compos-
13 ite of skill, effort, and responsibility, and performed under similar
14 working conditions; except where payment is made pursuant to a differen-
15 tial based on:
16 [a.] (i) a seniority system;
17 [b.] (ii) a merit system;
18 [c.] (iii) a system which measures earnings by quantity or quality of
19 production; or
20 [d.] (iv) a bona fide factor other than [sex] status within one or
21 more protected class or classes, such as education, training, or experi-
22 ence. Such factor: [(i)] (A) shall not be based upon or derived from a
23 [sex-based] differential in compensation based on status within one or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13080-04-9
A. 8093--A 2
1 more protected class or classes and [(ii)] (B) shall be job-related with
2 respect to the position in question and shall be consistent with busi-
3 ness necessity. Such exception under this paragraph shall not apply when
4 the employee demonstrates [(A)] (1) that an employer uses a particular
5 employment practice that causes a disparate impact on the basis of [sex]
6 status within one or more protected class or classes, [(B)] (2) that an
7 alternative employment practice exists that would serve the same busi-
8 ness purpose and not produce such differential, and [(C)] (3) that the
9 employer has refused to adopt such alternative practice.
10 2. For the purpose of subdivision one of this section[,]: (a) "busi-
11 ness necessity" shall be defined as a factor that bears a manifest
12 relationship to the employment in question, and (b) "protected class"
13 shall include age, race, creed, color, national origin, sexual orien-
14 tation, gender identity or expression, military status, sex, disability,
15 predisposing genetic characteristics, familial status, marital status,
16 or domestic violence victim status, and any employee protected from
17 discrimination pursuant to paragraphs (a), (b), and (c) of subdivision
18 one of section two hundred ninety-six and any intern protected from
19 discrimination pursuant to section two hundred ninety-six-c of the exec-
20 utive law.
21 § 2. Section 197 of the labor law, as amended by chapter 564 of the
22 laws of 2010, is amended to read as follows:
23 § 197. Civil penalty. Any employer who fails to pay the wages of his
24 employees or shall differentiate in rate of pay because of [sex]
25 protected class status, as provided in this article, shall forfeit to
26 the people of the state the sum of five hundred dollars for each such
27 failure, to be recovered by the commissioner in any legal action neces-
28 sary, including administrative action or a civil action.
29 § 3. This act shall take effect on the ninetieth day after it shall
30 have become a law.
