New York Employers – New Pay Equity Laws and Hair Bias Ban May Require You to Update Your Policies
The New York State Legislature and Governor Cuomo have been busy in 2019 enacting laws that will have a lasting impact on employers and workers in the Empire State for years to come. Among these are bans on inquiring about salary history, and discriminating against individuals on the basis of their natural hairstyle. Employers should understand the implications of these laws, and if necessary, amend their policies and practices accordingly.
Salary History Ban and Pay Equity Law
Governor Cuomo made headlines before the start of the U.S. women’s soccer team’s ticker tape parade when he signed two bills during a press conference in New York City. The first bill, the Pay Equity Bill, expands upon prior equal pay laws by now prohibiting employers from compensating employees differently because of any "protected class status" (e.g. – age, race, gender, national origin, sexual orientation, gender identity, military status, disability, religion, domestic violence victim status, marital status). Additionally, the new law moves away from its predecessors by lowering the bar for a pay discrepancy to be actionable in court. Previously, a plaintiff had to demonstrate that her job required equal skill, effort, and responsibility under the same working conditions than those who were paid more. Under the new law, potential plaintiffs now only need to demonstrate that they performed substantially similar work to their higher-compensated co-workers.
The second of the laws signed by the Governor will impose a state-wide ban on relying on or inquiring about an applicant’s or employee’s pay history. A similar ban was already in effect for state public institutions, New York City, and several other municipalities. However, as of January 6, 2020 all New York state employers are prohibited from inquiring about pay history. Notably, an employee may still disclose this information voluntarily during the salary negotiation process, and an employer may still ask generalized questions on an application such as leaving a place for "salary desired." However, an employer may only verify an applicant or employee’s pay history if the information was given voluntarily during the negotiation process.
Hair Bias Ban
Hair bias bans have been gaining significant traction over the course of 2019. In February of this year, the New York City Commission on Human Rights published guidance stating that the New York City Human Rights Law protects an individual’s right to maintain a natural hairstyle closely associated with their racial, ethnic or cultural identity. In July, only a few months later, the state followed suit, and Governor Cuomo signed a bill amending the State Human Rights law to protect an individual’s “hair texture and protective hairstyles.” On August 9, 2019, Governor Cuomo signed another state law prohibiting employment discrimination based upon religious attire, clothing, or facial hair.
These laws and guidelines mean that New York employers need to review their own grooming policies as soon as possible, and ensure there are no policies that outright ban or require an employee to alter their natural hair. While an employer may require an employee to change his or her hairstyle in the face of a legitimate health and safety concern, the employer has a duty to consider alternative ways to address these concerns before imposing any restrictions on an employee’s hairstyle (e.g. – utilizing hair nets or different safety equipment). Additionally, employers enforcing quasi-subjective standards such as "maintaining a professional appearance," need to ensure their managers understand this standard does not mean traditionally white-European.
These laws demonstrate a mission by the Governor’s office and the legislature to alter the state’s employment laws, and warrant every employer’s attention. If you have any questions, or would like to discuss how these amendments will impact your business, please contact your regular Saul Ewing Arnstein & Lehr LLP labor and employment attorney.