On April 5, 2017, the New York City Council passed an amendment to the New York City Human Rights Law prohibiting employers or their agents from inquiring about the salary history of an applicant. The law also restricts an employer’s ability to rely upon that salary history in determining the salary, benefits or other compensation during the hiring process “including the negotiation of a contract.” The term “salary history” is defined to include current or prior wages, benefits or other compensation, but does not include “objective measures of the applicant’s productivity such as revenue, sales or other production reports.”
There are several notable exceptions to the law. READ MORE
New York City Public Advocate Letitia James has introduced before the New York City Council an amendment to the New York City Human Rights Law, which, if enacted, would prohibit employers from requesting or relying upon the salary history of an prospective employee in making starting salary and other pay decisions. In the bill summary, Public Advocate James and her co-sponsors conclude that when employers rely upon historical salary information, “they perpetuate the gender wage gap” and suggest that this legislation would “help break the cycle of gender pay inequity.” New York City’s proposed legislation follows closely on the heels of a wide-reaching pay equity statute recently enacted in Massachusetts that includes a prohibition on employers requesting or requiring applicants to provide their salary history.
As we noted in a previous post, Maryland Governor Larry Hogan signed the Equal Pay for Equal Work Act of 2016 (“Equal Pay Act”) into law on May 19, 2016 (effective on October 1, 2016). With the passage of this new law, Maryland joins New York and California in the category of states with some of the country’s most expansive equal pay protections. Included below are our updated maps of states with equal pay protections and of states with equal pay protections and states with pending equal pay legislation.
From coast to coast, as the calendar turned to 2016, a host of new employment laws became effective. States and local government are imposing broad obligations on employers well above what federal law requires. This patchwork of legal requirements will continue to bedevil employers. As you begin implementing your resolutions for 2016, here’s our take on the major changes that went into effect across the nation last week:
“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.
Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) rescinded two 2006 guidance documents concerning how the OFCCP and federal contractors analyze potential pay discrimination. This change came as a response to President Obama’s Equal Pay Task Force, which brought together the federal agencies charged with addressing pay discrimination.
The OFCCP, which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, concluded that the previous guidance was too rigid and undermining the agency’s efforts to combat discrimination. Several aspects of the now-rescinded guidance fell into disfavor with the OFCCP in its efforts to carry out President Obama’s mandate to step up investigation of systemic compensation discrimination. First, it was required to compare “similarly situated workers,” defined narrowly to include only employees with the same position. Second, it was required to use multiple regression analysis to test for pay disparities, failing to address situations where analysis of a smaller sample size might be more appropriate. Finally, it required anecdotal evidence to establish a systemic compensation violation in addition to statistical evidence. Reasoning that “employment discrimination comes in many forms,” OFCCP found that this specific method of analyzing compensation would not allow OFCCP to detect all forms of pay discrimination. READ MORE