The gender pay gap has been an issue which, over the past few years, many have been trying to overcome.[1] To improve the situation, New York City has recently implemented Local Law 67.[2] When put into effect on October 31, 2017, this law will add Section 8-107(25) to the New York City Administrative Code,[3] “prohibit[ing]employers from inquiring about a prospective employee’s salary history during all stages of the employment process.”[4] Furthermore, the law will prohibit such information, if obtained by an employer, from being used in determining compensation during the hiring process, unless it is given voluntarily by the prospective employee.[5] This law is expected to “reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequality.”[6] The question that arises is whether the issue of pay equality can be fully solved by such a measure, and whether anything more can be done to better prevent such inequality.
In 2016, New York was at the top of the charts in keeping the gender pay gap to a minimum, with the median female income at 89% of the median male income.[7] This came after the passing of several new laws in New York, including the Achieve Pay Equity Law, which made “significant changes to New York’s own equal pay act, N.Y. Labor Law §194.”[8] Among those changes is a requirement that employers must demonstrate “a bona fide factor other than sex, such as education, training, and experience” to justify a difference in pay.[9] The rule further clarifies that even such a demonstration may not be enough to justify a difference in pay, as it would not stand against a showing by the employee that the employer considered and rejected another equally effective and less discriminatory practice.[10] This law lowered the likelihood of employers discriminating in the determination of salaries for their employees, but potentially left a loophole for employers to take advantage of: They could claim that their employees’ pay was determined based on their previous salaries, thus continuing a cycle of discrimination against those who had already received a salary not commensurate with their qualifications.[11]
Local Law 67, by disallowing the question regarding previous salaries, is another step in the direction of wage equality, since it will allow those who have received a low salary in the past to not be tied to that low salary for the rest of their careers.[12] This measure can stop a continuing practice of inequality based on previous salaries, and, in conjunction with the Achieve Pay Equity Law and other laws like it, can effectively reduce the existence of inequalities in pay that stem from discriminatory practices.[13]
That being said, there is still much that can be done to further promote pay equality.[14] One suggestion is to require that employers post a salary range in job advertisements.[15] However, there are many downsides to implementing such a rule, such as the reduction of negotiating power for the employer, especially in situations where people with different levels of education or experience may be well suited to the same position.[16] Legislators should, as they have with Local Law 67, the Achieve Pay Equity Law, and others, aim to achieve a balanced position to promote equality without excessively detracting from employers’ ability to negotiate salaries with potential employees.[17]
While the gender pay gap is steadily shrinking, especially in New York, there is still much that can be done to ensure equality between salaries of men and women.[18] The implementation of Local Law 67 will likely improve the situation by preventing people from being continually discriminated against under the guise of a slightly raised previous salary.[19] This is a step in the right direction toward a time in which employees’ salaries are determined based on their qualifications rather than their biological differences.[20]
[1] See Danielle Paquette, The Gender Wage Gap Just Shrank for the First Time in a Decade, Wash. Post (Sept. 15, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/09/15/the-gender-wage-gap-just-shrank-for-the-first-time-in-a-decade/?utm_term=.7467b309f975.
[2] Salary History Inquiries to be Off-Limits to New York City Employers, Blank Rome LLP (May 8, 2017), https://www.blankrome.com/index.cfm?contentID=37&itemID=4217.
[3] Id.
[4] The N.Y.C. Council, http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=28135 07&GUID=938399E5-6608-42F5-9C83-9D2665D9496F (last visited Sept. 24, 2017).
[5] 2017 N.Y.C. Local Laws No. 67, §1, N.Y.C. Admin. Code §8-107(25). There are other exceptions as well. See id.
[6] The N.Y.C. Council, supra note 4.
[7] This is a decent amount higher than the national ratio which is at 80%. Kevin Miller, The Simple Truth About the Gender Wage Gap, AAUW, http://www.aauw.org/research/the-simple-truth-about-the-gender-pay-gap/ (last visited Sept. 27, 2017).
[8] Bruce R. Millman, Why NY’s New Pay Equity Law May Be a Game-Changer, Littler (Nov. 7, 2016), https://www.littler.com/publication-press/press/why-nys-new-pay-equity-law-may-be-game-changer.
[9] Id. (internal quotations omitted) (quoting N.Y. Lab. Law § 194 (1)(d)).
[10] Spiwe L.A. Pierce, Scott Fazio, & Joseph E. Schmitt, What Every Employer Should Know About New Pay Equity Laws, ACC.com (Jun. 15, 2016), http://www.acc.com/docket/articles /what-every-employer-should-know-about-new-pay.cfm.
[11] See The N.Y.C. Council, supra note 4.
[12] See id.
[13] See id.; Millman, supra note 8.
[14] These suggestions can be implemented either locally or federally, but the process is a lot slower for federal legislation. The Fight for Pay Equity: A Federal Road Map, AAUW (Sept. 2017), http://www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=Gender_ Pay_Gap_New_York.
[15] Id.; see also When You Don’t Disclose Salary Range on a Job Posting, a Unicorn Loses its Wings, Nonprofit and Friends (Jun. 1, 2015), http://nonprofitaf.com/2015/06/when-you-dont-disclose-salary-range-on-a-job-posting-a-unicorn-loses-its-wings/.
[16] See Jess Vyvial-Larson, Why Isn’t Salary Always Listed on a Job Posting?, Flexjobs (Aug. 16, 2017), https://www.flexjobs.com/blog/post/why-isnt-salary-always-listed-on-a-postin/.
[17] See The N.Y.C. Council, supra note 4; Millman, supra note 8.
[18] See AAUW, supra note 14.
[19] See The N.Y.C. Council, supra note 4.
[20] The gender pay gap is projected to completely close in New York by 2046. Projected Year the Wage Gap Will Close by State, IWPR.org (Mar. 2017), https://iwpr.org/wp-content/uploads/2017/03/R476.pdf.
