As part of a marathon finish to the 2019 legislative session, the New York State legislature recently passed two new equal pay bills that build on other state and local laws enacted within recent years. The first of the two bills, Senate Bill No. S5248A, broadens the scope of § 194 of the New York Labor Law (“NYLL”) to establish prohibitions on compensation discrimination between employees performing work that is “substantially similar,” and by prohibiting compensation discrimination on the basis of any protected status or classification under the New York State Human Rights Law (“NYSHRL”). The second bill, Senate Bill No. S6549, establishes a broad proscription on salary history inquiries during the recruitment and hiring process. Together, the bills cement New York’s pay equity regime as among the strongest in the country and introduce new compliance challenges and questions in analyzing employee compensation. READ MORE
Lisa Lupion, a partner in Orrick’s New York office, has experience litigating a broad range of employment issues, including discrimination, harassment, wrongful discharge and compensation claims before state and federal courts and administrative agencies.
Lisa also has significant experience defending wage-and-hour class and collective action claims under state and federal laws, including claims for overtime, minimum wage, meal and rest break penalties and expense reimbursements. She regularly conducts internal wage-and-hour audits and advises on misclassification issues in a variety of sectors including financial services, media and publishing, nonprofit entities and startup companies, among others. Recent wage-and-hour engagements include:
- Advising clients facing claims of independent contractor misclassification before the Department of Labor, both in the context of individual claims and Department of Labor audits.
- Defending off-the-clock claims in national FLSA collective actions in federal court and in arbitration.
In addition, Lisa has significant experience defending clients before AAA, JAMS and FINRA. Recent arbitration experience includes:
Successfully defending global investment banking firm against claims for allegedly unpaid bonus based upon purported oral promise for formulaic bonus compensation.
- Representing global financial institution in a nine-day hearing before a FINRA Panel that rejected claims for unpaid compensation.
Lisa regularly advises clients on a variety of employment-related issues, including human resources policies and procedures, offer letters, severance agreements and employee termination. As part of her counseling role, she creates and conducts training programs for her clients. Lisa also has significant experience conducting internal investigations.
Prior to joining Orrick, Lisa served as a law clerk to the Hon. Peter Leisure in the United States District Court for the Southern District of New York.
Posts by: Lisa Lupion
On April 12th, Maine joins a growing list of jurisdictions, including California, Connecticut, Delaware, Hawaii, Massachusetts, New York City (as well as other cities within New York) Oregon, Puerto Rico, and Vermont, that restrict private employers from obtaining salary history information from job candidates and applicants. Within the Northeast region, only Rhode Island and New Hampshire have yet to enact comparable regulations in the public or private sectors, with a bill, HB 221, presently pending before the New Hampshire legislature. READ MORE
For the last two decades, Congressional Democrats have attempted to pass the Paycheck Fairness Act. Beginning with the 105th Congress in 1997-98, several legislators have introduced versions of the act, including then-Senator Hillary Clinton in 2005. Following their newly won majority in the House of Representatives, Democratic lawmakers recently re-introduced the Paycheck Fairness Act on January 30, 2019. The proposed bill, H.R. 7, was introduced by Representative Rosa DeLauro (D) and appears to have considerable Congressional support. Notably, cosponsors of H.R. 7 include every Democratic member of the House of Representatives and forty-five Senators. READ MORE
Joining New York City, Westchester, and Albany, the Suffolk County Legislature, on November 20, 2018, adopted its own variation of a salary history ban.
Connecticut Governor Dannel Malloy is poised to sign into law the Act Concerning Pay Equity bill, which has been passed by both the Connecticut House and Senate General Assembly. In what Governor Malloy referred to as “commonsense legislation” to address pay equity concerns, the Connecticut bill would prohibit an employer, or a third party acting on the employer’s behalf (like a recruiting firm), from inquiring about a prospective employee’s wage and salary history unless voluntarily disclosed by the applicant. The bill does permit an employer to inquire about other components that contributed to the applicant’s previous total compensation package, but not about the value of those items. Although no examples are provided in the legislation, it would seemingly be permissible to ask whether a prospective employee received stock options at their previous employment, but not the value of those options. READ MORE
California continues to pace the nation in terms of equal pay protections, most recently through Governor Jerry Brown’s signing of Assembly Bill 168 on October 12, 2017. Effective January 1, 2018, California’s new law prohibits employers from asking job candidates about their prior salary, although it allows employers to consider prior salary information if a job candidate voluntarily discloses it. California’s law further contains an unprecedented provision that requires employers to disclose to job candidates the “pay scale” for the position at issue if the job candidate requests it. Governor Brown also signed Assembly Bill 46, which clarifies that the state’s equal pay laws apply to both private and public employers. READ MORE
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.