 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5173
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                     April 12, 2019
                                       ___________
 
        Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
          printed to be committed to the Committee on Investigations and Govern-
          ment Operations
 
        AN ACT to amend the executive law, in relation to  prohibiting  wage  or
          salary  history  inquiries; and to amend the labor law, in relation to
          the prohibition of  a  differential  rate  of  pay  on  the  basis  of
          protected class status
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 1 of  section  296  of  the  executive  law  is
     2  amended by adding a new paragraph (h) to read as follows:
     3    (h)  (i) For an employer or employment agency in writing or otherwise,
     4  to rely on, or inquire about,  the  salary  history  information  of  an
     5  applicant  for  employment  as  a factor in determining whether to offer
     6  employment to an applicant or what salary to offer an applicant. Nothing
     7  in this subdivision shall prevent  an  applicant  from  voluntarily  and
     8  without prompting disclosing salary history information to a prospective
     9  employer. If an applicant volunteers salary history information, nothing
    10  shall  prohibit that employer from considering or relying on that infor-
    11  mation. Nothing in this subdivision shall prohibit an employer,  without
    12  inquiring  about  salary  history,  from engaging in discussion with the
    13  applicant about their expectations with respect to salary, benefits, and
    14  other compensation.
    15    (ii) For the purposes of this paragraph, "employer" shall include  but
    16  not  be  limited  to any person, corporation, limited liability company,
    17  association, labor organization, or entity employing any  individual  in
    18  any  occupation,  industry, trade, business or service. For the purposes
    19  of this paragraph, the term "employer"  shall  include  the  state,  any
    20  political subdivision thereof, any public authority or any other govern-
    21  mental  entity  or instrumentality thereof, and any person, corporation,
    22  limited liability company, association or entity acting as an employment
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10298-03-9

        S. 5173                             2
 
     1  agent, recruiter, or otherwise  connecting  prospective  employees  with
     2  employers.
     3    § 2. The section heading and subdivision 1 of section 194 of the labor
     4  law, the section heading as added by chapter 548 of the laws of 1966 and
     5  subdivision 1 as amended by chapter 362 of the laws of 2015, are amended
     6  to read as follows:
     7    Differential  in  rate  of pay because of [sex] protected class status
     8  prohibited.   1. "Protected  class"  includes  the  list  of  categories
     9  protected  from  discrimination pursuant to paragraph (a) of subdivision
    10  one of section two hundred ninety-six of the executive law.
    11    1-a. No employee who is a member of a protected class shall be paid  a
    12  wage  at a rate less than the rate at which an employee [of the opposite
    13  sex] who is not a member of the protected class in the  same  establish-
    14  ment  is paid for [equal work on a job the performance of which requires
    15  equal skill, effort and responsibility, and  which  is  performed  under
    16  similar working conditions] substantially similar work, when viewed as a
    17  composite  of  skill,  effort,  and  responsibility, and performed under
    18  similar working conditions, except where payment is made pursuant  to  a
    19  differential based on:
    20    a. a seniority system;
    21    b. a merit system;
    22    c.  a  system  which  measures  earnings  by  quantity  or  quality of
    23  production; or
    24    d. a bona fide factor other than [sex]  the  protected  class  status,
    25  such  as  education, training, or experience. Such factor: (i) shall not
    26  be based upon [or derived from] a [sex-based]  differential  in  compen-
    27  sation  that  was  originally  derived from a protected class status and
    28  (ii) shall be job-related with respect to the position in  question  and
    29  shall  be  consistent with business necessity. Such exception under this
    30  paragraph shall not apply when the employee  demonstrates  (A)  that  an
    31  employer  uses  a particular employment practice that causes a disparate
    32  impact on the basis of [sex] protected class status, (B) that an  alter-
    33  native  employment  practice  exists  that would serve the same business
    34  purpose and not produce such differential, and (C) that the employer has
    35  refused to adopt such alternative practice.
    36    § 3. This act shall take effect on the one hundred eightieth day after
    37  it shall have become a law.
Relates to salary history inquiries

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