S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5173
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              April 12, 2019
                                ___________
 
 Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the executive law, in relation to  prohibiting  wage  or
   salary  history  inquiries; and to amend the labor law, in relation to
   the prohibition of  a  differential  rate  of  pay  on  the  basis  of
   protected class status
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of  section  296  of  the  executive  law  is
 amended by adding a new paragraph (h) to read as follows:
   (H)  (I) FOR AN EMPLOYER OR EMPLOYMENT AGENCY IN WRITING OR OTHERWISE,
 TO RELY ON, OR INQUIRE ABOUT,  THE  SALARY  HISTORY  INFORMATION  OF  AN
 APPLICANT  FOR  EMPLOYMENT  AS  A FACTOR IN DETERMINING WHETHER TO OFFER
 EMPLOYMENT TO AN APPLICANT OR WHAT SALARY TO OFFER AN APPLICANT. NOTHING
 IN THIS SUBDIVISION SHALL PREVENT  AN  APPLICANT  FROM  VOLUNTARILY  AND
 WITHOUT PROMPTING DISCLOSING SALARY HISTORY INFORMATION TO A PROSPECTIVE
 EMPLOYER. IF AN APPLICANT VOLUNTEERS SALARY HISTORY INFORMATION, NOTHING
 SHALL  PROHIBIT THAT EMPLOYER FROM CONSIDERING OR RELYING ON THAT INFOR-
 MATION. NOTHING IN THIS SUBDIVISION SHALL PROHIBIT AN EMPLOYER,  WITHOUT
 INQUIRING  ABOUT  SALARY  HISTORY,  FROM ENGAGING IN DISCUSSION WITH THE
 APPLICANT ABOUT THEIR EXPECTATIONS WITH RESPECT TO SALARY, BENEFITS, AND
 OTHER COMPENSATION.
   (II) FOR THE PURPOSES OF THIS PARAGRAPH, "EMPLOYER" SHALL INCLUDE  BUT
 NOT  BE  LIMITED  TO ANY PERSON, CORPORATION, LIMITED LIABILITY COMPANY,
 ASSOCIATION, LABOR ORGANIZATION, OR ENTITY EMPLOYING ANY  INDIVIDUAL  IN
 ANY  OCCUPATION,  INDUSTRY, TRADE, BUSINESS OR SERVICE. FOR THE PURPOSES
 OF THIS PARAGRAPH, THE TERM "EMPLOYER"  SHALL  INCLUDE  THE  STATE,  ANY
 POLITICAL SUBDIVISION THEREOF, ANY PUBLIC AUTHORITY OR ANY OTHER GOVERN-
 MENTAL  ENTITY  OR INSTRUMENTALITY THEREOF, AND ANY PERSON, CORPORATION,
 LIMITED LIABILITY COMPANY, ASSOCIATION OR ENTITY ACTING AS AN EMPLOYMENT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10298-03-9

 S. 5173                             2
 
 AGENT, RECRUITER, OR OTHERWISE  CONNECTING  PROSPECTIVE  EMPLOYEES  WITH
 EMPLOYERS.
   § 2. The section heading and subdivision 1 of section 194 of the labor
 law, the section heading as added by chapter 548 of the laws of 1966 and
 subdivision 1 as amended by chapter 362 of the laws of 2015, are amended
 to read as follows:
   Differential  in  rate  of pay because of [sex] PROTECTED CLASS STATUS
 prohibited.   1. "PROTECTED  CLASS"  INCLUDES  THE  LIST  OF  CATEGORIES
 PROTECTED  FROM  DISCRIMINATION PURSUANT TO PARAGRAPH (A) OF SUBDIVISION
 ONE OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW.
   1-A. No employee WHO IS A MEMBER OF A PROTECTED CLASS shall be paid  a
 wage  at a rate less than the rate at which an employee [of the opposite
 sex] WHO IS NOT A MEMBER OF THE PROTECTED CLASS in the  same  establish-
 ment  is paid for [equal work on a job the performance of which requires
 equal skill, effort and responsibility, and  which  is  performed  under
 similar working conditions] 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:
   a. a seniority system;
   b. a merit system;
   c.  a  system  which  measures  earnings  by  quantity  or  quality of
 production; or
   d. a bona fide factor other than [sex]  THE  PROTECTED  CLASS  STATUS,
 such  as  education, training, or experience. Such factor: (i) shall not
 be based upon [or derived from] a [sex-based]  differential  in  compen-
 sation  THAT  WAS  ORIGINALLY  DERIVED FROM A PROTECTED CLASS STATUS and
 (ii) 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  (A)  that  an
 employer  uses  a particular employment practice that causes a disparate
 impact on the basis of [sex] PROTECTED CLASS STATUS, (B) that an  alter-
 native  employment  practice  exists  that would serve the same business
 purpose and not produce such differential, and (C) that the employer has
 refused to adopt such alternative practice.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.