2023 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.