NY Lab L § 194 (2021)
2021 New York Laws LAB - Labor Article 6 - Payment of Wages 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.