N.Y. Labor Law § 194: Differential in rate of pay because of protected class status prohibited

§ 194. Differential in rate of pay because of protected class status

prohibited. 1. No employee with status within one or more protected

class or classes shall be paid a wage at a rate less than the rate at

which an employee without status within the same protected class or

classes in the same establishment is paid for: (a) equal work on a job

the performance of which requires equal skill, effort and

responsibility, and which is performed under similar working conditions,

or (b) substantially similar work, when viewed as a composite of skill,

effort, and responsibility, and performed under similar working

conditions; except where payment is made pursuant to a differential

based on:

(i) a seniority system;

(ii) a merit system;

(iii) a system which measures earnings by quantity or quality of

production; or

(iv) a bona fide factor other than status within one or more protected

class or classes, such as education, training, or experience. Such

factor: (A) shall not be based upon or derived from a differential in

compensation based on status within one or more protected class or

classes and (B) shall be job-related with respect to the position in

question and shall be consistent with business necessity. Such exception

under this paragraph shall not apply when the employee demonstrates (1)

that an employer uses a particular employment practice that causes a

disparate impact on the basis of status within one or more protected

class or classes, (2) that an alternative employment practice exists

that would serve the same business purpose and not produce such

differential, and (3) that the employer has refused to adopt such

alternative practice.

2. For the purpose of subdivision one of this section: (a) "business

necessity" shall be defined as a factor that bears a manifest

relationship to the employment in question, and (b) "protected class"

shall include age, race, creed, color, national origin, sexual

orientation, gender identity or expression, military status, sex,

disability, predisposing genetic characteristics, familial status,

marital status, or domestic violence victim status, and any employee

protected from discrimination pursuant to paragraphs (a), (b), and (c)

of subdivision one of section two hundred ninety-six and any intern

protected from discrimination pursuant to section two hundred

ninety-six-c of the executive law.

3. For the purposes of subdivision one of this section, employees

shall be deemed to work in the same establishment if the employees work

for the same employer at workplaces located in the same geographical

region, no larger than a county, taking into account population

distribution, economic activity, and/or the presence of municipalities.

4. (a) No employer shall prohibit an employee from inquiring about,

discussing, or disclosing the wages of such employee or another

employee.

(b) An employer may, in a written policy provided to all employees,

establish reasonable workplace and workday limitations on the time,

place and manner for inquires about, discussion of, or the disclosure of

wages. Such limitations shall be consistent with standards promulgated

by the commissioner and shall be consistent with all other state and

federal laws. Such limitations may include prohibiting an employee from

discussing or disclosing the wages of another employee without such

employee's prior permission.

(c) Nothing in this subdivision shall require an employee to disclose

his or her wages. The failure of an employee to adhere to such

reasonable limitations in such written policy shall be an affirmative

defense to any claims made against an employer under this subdivision,

provided that any adverse employment action taken by the employer was

for failure to adhere to such reasonable limitations and not for mere

inquiry, discussion or disclosure of wages in accordance with such

reasonable limitations in such written policy.

(d) This prohibition shall not apply to instances in which an employee

who has access to the wage information of other employees as a part of

such employee's essential job functions discloses the wages of such

other employees to individuals who do not otherwise have access to such

information, unless such disclosure is in response to a complaint or

charge, or in furtherance of an investigation, proceeding, hearing, or

action under this chapter, including an investigation conducted by the

employer.

(e) Nothing in this section shall be construed to limit the rights of

an employee provided under any other provision of law or collective

bargaining agreement.