The bill also expands what qualifies as a prohibited wage differential from not only “equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions” but also to: “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” This expansion seems to be designed to ease the difficult task of proving that the jobs were basically the same by requiring a more comprehensive “totality of the circumstances” test. Given that the exceptions remain based on seniority, merit and quality/quantity systems as well as the rather open-ended “bona fide” factor, it remains to be seen how the courts will interpret this new part of the law and whether there will be any practical difference.
Governor Cuomo also signed another bill broadly prohibiting wage and salary history inquiries from current or potential employees, amending Section 194 of the Labor Law. Generally, the new law means that an employer or prospective employer cannot ask about or rely on salary history to interview, offer employment to, promote or otherwise determine the salary of an employee or prospective employee. There is evidence that salary history inquiries have been a means to perpetuate the payment of lower salaries to women and persons of color and may also play a role in stagnating salaries for all employees. Again, Mayor DeBlasio and the New York City Council led the way by adopting the first such law in the Nation back in 2017.