Recent Developments In New York Employment Law

New York State employers should be aware of some significant developments in New York employment law this past legislative session. While some of these developments may not be new to employers in New York City, all New York employers should review their policies, pay practices and hiring documents to ensure compliance with these new laws.

Highlights of these recent developments are below:

Modifications to New York’s Pay Equity Law

Amendments to N.Y. Labor Law § 194, New York’s pay equity law, take effect October 9, 2019. Previously, the law only applied to wage discrimination based on gender by prohibiting an employee from being paid less than an employee of the opposite sex for equal work that requires equal skill, effort and responsibility, and that is performed under similar working conditions.

The amendments have expanded the prohibition on wage discrimination to all protected classifications under the New York State Human Rights Law (“NYSHRL”), such as age, race, creed, disability, national origin and sexual orientation. Under the new changes to the law, New York has also lessened the burden for an employee to prove wage discrimination by prohibiting wage discrimination based on a protected classification for employees who are performing “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” The statute still contains certain defenses to pay differentials based on non-discriminatory factors, such as seniority, merit, geography, the quantity and quality of work, or an employee’s education, training, or experience.

Prohibition on Salary History Inquiries

Since October 31, 2017, New York City employers have been prohibited from inquiring or relying upon the salary history of an applicant or employee in making hiring or promotion decisions. New York State has now enacted a similar salary history inquiry ban that takes effect January 6, 2020.

Under the new law, employers are prohibited from requesting, requiring, or seeking the salary or wage history of a job applicant or current employee as a condition of employment, a condition to receive an interview, a condition of an offer of employment, or a condition for continued employment or promotion. Employers are also prohibited from relying on salary or wage history when determining whether to offer employment to an applicant or what wages or salary to offer an applicant. Employers are prohibited from retaliating against an applicant or employee by refusing to interview, hire, promote, or otherwise employ an applicant or employee based on their salary or wage history or because they refused to provide salary or wage history. The new law, however, does not prevent an applicant or employee from voluntarily disclosing their salary or wage history to the employer, such as to negotiate a higher salary.

Ban on Race Discrimination Based on Natural Hairstyles

Effective July 12, 2019, New York has now become the second state in the country to ban race discrimination based on natural hairstyles through an amendment to the NYSHRL. While “race” has historically been a protected classification under the NYSHRL, the amendment to the NYSHRL has now defined “race” to include “ancestry, color, ethnic group identification, and ethnic background.” The definition of “race” also includes “traits historically associated with race, including but not limited to, hair texture and protective hairstyles,” such as braids, locs and twists.

This new amendment to the NYSHRL follows February 2019 guidance from the New York City Commission on Human Rights. Such guidance calls for the protection of those covered under the New York City Human Rights Law (“NYCHRL”) to maintain natural hair or hairstyles, including “natural hair, treated or untreated hairstyles, such as locs, cornrows, twists, braids, Bantu knots, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

Under both the new amendment to the NYSHRL and the NYCHRL guidance, certain employer appearance or grooming policies could be deemed discriminatory if such policies ban, limit, or restrict natural hair or hairstyles historically associated with race. For example, refusing to hire an individual with cornrows because it does not fit the “image” of the employer or maintaining a policy that calls for a “neat and orderly” appearance, but that is enforced in a discriminatory manner by targeting specific hairstyles based on race, could violate the NYSHRL and the NYCHRL.

Penalties for Retaliating Against Immigrant Employees

The retaliation provision of Section 215 of the New York Labor Law was also amended this month. Under the current statute, it is a class B misdemeanor for an employer to discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because the employee has filed a complaint that the employer has violated the Labor Law or the employee has otherwise exercised their rights under the Labor Law.

Under the new amendment, “to threaten, penalize, or in any other manner discriminate or retaliate against any employee” includes threatening to contact or contacting U.S. immigration authorities or otherwise reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member to a federal, state or local agency. The law codifies federal case law interpreting the anti-retaliation provisions of the New York Labor Law and the federal Fair Labor Standards Act.

For questions about these recent developments in New York law, please feel free to contact a Clifton Budd & DeMaria, LLP attorney.