Women’s Equality Agenda Expands Protection For Women In The Workplace – Part I

Today New York State Andrew Cuomo signed a package of eight bills which comprise the Women’s Equality Agenda. The bills all have the purpose of advancing women’s rights in the State of New York. The act contains several provisions that expand workplace protections for women, as well as all employees.

Over the next few days I will highlight the various bills in the WEA “package” that concern changes in employment law.  Part II of the series may be found here.  Part III is here.  Part IV is here.  Part V is here.

Realizing The Promise Of Equal Pay

New York State has long had an Equal Pay Act, prohibiting differences in pay between women and men for equal work. The law provided an exception, however, for differences based on:

• a seniority system;
• a merit system;
• a system which measures earnings by quantity or quality of production; or
• any other factor other than sex.

The last exception swallowed the rule. In practice an employer was allowed to point to any reason, no matter how nonsensical, to explain any pay disparity between men and women.

The new law, S.1/A.6075, eliminates this gaping loophole and requires that any difference in pay have a bona fide reason behind

Now an employer must demonstrate that there is a business necessity for the payroll discrepancy. An employee can refute the employer’s defense of business necessity by showing that alternative practices that would not create such a discrepancy are available and the employer has refused to adopt such alternatives. The legislative memo accompanying the law states that this would adopt the standard used for disparate impact claims under federal law.

The law also provides that, in the case of a willful violation, an employer can be forced to pay liquidated damages in an amount equal to 300% of the wages found to be due.

Finally, the law creates additional protections for all workers who seek to inquire about salaries paid to other workers. The law prohibits employers from enforcing policies that prohibit workers from discussing salary information. The law does allow employers to adopt reasonable restrictions as to time place and manner of such discussions. One interesting development to watch is to see if employers challenge this provision as being pre-empted under the National Labor Relations Act.