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Has New York Become the New California for Employment Law?

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In the last year, the Empire State has begun to give the Golden State some serious competition for being the most pro-employee state in the Union. Earlier this summer, for example, I wrote about New York’s new laws to address harassment in the workplace. Last week, Governor Cuomo signed two additional bills that expanded New York’s equal pay law.

Much like the federal Equal Pay Act, New York’s equal pay law previously only addressed pay inequity based on sex. The new law now prohibits pay differentials based on other protected classes including age, race, national origin, disability, sexual orientation and familial status or any other status protected under the New York State Human Rights Law.

But perhaps the most significant change in New York’s equal pay law is that it lowered the burden of proof from the requirement to show that an employee’s job is “substantially equal” to the job of a higher-paid colleague to only having to prove that they perform “substantially similar work” for less pay. Employers can still defend against such claims by showing that there are non-discriminatory reasons for the pay differentials such as seniority, merit, geography, quantity or quality of work, or an employee’s education, training, or experience.

New York state employers are also now prohibited from making inquiries about a job applicant’s salary history or relying on an applicant’s salary history when deciding whether to offer an applicant a job or setting an employee’s history. While applicants can voluntarily disclose their salaries when negotiating with a prospective employer, employers will need to be very careful because the applicant may later deny that the disclosure was voluntary. New York City law has prohibited such inquiries since 2017.

Most would probably agree that California still retains the title of the most employee-friendly state in the nation, especially when one considers California’s very generous and complicated break and overtime laws. Nevertheless, New York has definitely earned the title for being the second most employee-friendly state in the nation.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.