Equal Pay

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Q: I heard that New York City recently amended the salary transparency law. What are the key aspects of the amendment and when does it go into effect?

A: As discussed in our previous post, an upcoming law requires New York City employers to include salary bands in job advertisements or postings. Employers must include the minimum and maximum salary or hourly rate for the position, and the requirement applies to both internal and external postings.

Q: What do employers need to know about state and local pay transparency and salary equity laws?

A: Pay equity has been a hot topic for employers over the last few years and it continues to make headlines. Today, March 8, is International Women’s Day and March 15 marks this year’s “Equal Pay Day” – a date meant to symbolize how far into the year women must work to earn what men earned in the previous year.

Q: What do New York employers need to know about the recent amendment to the state’s pay equity law?

A: In November 2015, New York became one of the first jurisdictions to pass a pay equity law that was more extensive than the federal equal pay laws.  On July 10, 2019, Governor Cuomo signed an amendment to New York Labor Law Section 194, further expanding its scope.

Q.  Are there any Equal Pay Acts that apply specifically to employers in Massachusetts and New Jersey?

A.  On July 1, 2018, an updated equal pay law becomes effective in Massachusetts, referred to as “MEPA” (Massachusetts Equal Pay Act). MEPA covers nearly all Massachusetts employers, irrespective of size, and most employees, including full-time, part-time, seasonal, per-diem, and temporary employees. Employees who telecommute to a primary place of work in Massachusetts also are covered.

Q.  What is the status of the EEOC’s requirement that we submit pay data with our annual EEO-1 Form?  Also, have there been any updates on the lawsuit blocking the DOL’s rule raising the salary basis for certain non-exempt employees?

A.  As we reported previously, the EEOC, as part of its effort to detect and remedy pay discrimination, amended its EEO-1 Form to require that employers with 100 or more employees submit detailed pay data on their workforce.  On August 29, 2017, the OMB sent a memorandum to the EEOC, staying implementation of this requirement.  Thus, at least for now, employers may limit the information provided on the EEO-1 Form to data on race, ethnicity and gender by occupational category (but not data on pay or hours worked).

Q.  My company has employees in New York City.  We often ask applicants about their salary history as a starting point for negotiating and setting a new salary.  Are we still permitted to do this?

A.  Effective October 2017, it will be unlawful for employers to ask job applicants in New York City about their salary history.  Salary history includes “current or prior wage, benefits, or other compensation.”  The ban includes inquiries to an applicant’s current or former employer and searches of publicly available information for salary history.

Q.  My company is based in Philadelphia.  We often set salaries for new employees based on the applicant’s wage history.  Are we still permitted to do this?

A.  Effective May 23, 2017, a new Philadelphia Ordinance makes it unlawful for employers in Philadelphia to inquire about a prospective employee’s wage history or require disclosure of wage history as a condition of employment.  The law was passed to encourage employers to base salary offers on the job responsibilities of the position sought, rather than on the applicant’s prior wages.  Employers will no longer be able to rely on the wage history of a prospective employee when determining the wages of that individual, unless the individual knowingly and willingly disclosed his or her wage history to the employer.