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This entry was published on 2019-10-11
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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

(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

(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.