Home

Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.455.7180
www.bcnys.org

BILL:

S.4482 (Sanders) / A.4696 (Titus)

Support

SUBJECT:

New York State Fair Pay Act

 

DATE:

April 17, 2018

 

This legislation would amend New York State's Labor Law, expanding the equal pay for equal work law to include equal pay for different work.

The Business Council opposes this bill because:

Equal pay is already current law
For more than 40 years, equal pay for equal work has been and continues to be the law for both public and private employers. This issue is covered by the Equal Pay Act of 1963 and the Civil Rights Act of 1964 and similar state statutes. These laws have created a vigorous standard and require employers to pay male and female, minority and non-minority employees the same wages if they are doing work “substantially equal" in skill, effort, responsibility and working conditions.

In addition, New York already strengthened these protections in 2016 by amending its equal pay law (S.1/A.6075).  This amendment requires employers to show not only that the pay differentials are “bona fide,” but also that they are business related.  Moreover, even if an employer establishes a “bona fide factor” to justify a gender pay difference, an employee can still prevail under the new law by showing that:  (a) the bona fide factor has a disparate impact on one sex; (b) alternative employment practices exist that would serve the same business purpose and not produce the pay differential; and (c) the employer refused to adopt the alternative practice.

These existing laws already prohibit any wage differentials based on the sex or race of the employee and therefore make it unnecessary to enact the New York State “Fair Pay Act.”

Sweeping DOL involvement in determining a job evaluation
The bill calls for the state's DOL to promulgate regulations specifying a methodology for determining equivalent skill, effort, responsibility and working conditions. Then it calls for the establishment of a single job comparison system.  Once the department establishes a single job comparison system, it will require all employers to use it. This would be unprecedented government intrusion into the establishment of private sector organizations' pay methods and systems.

Market based wages are rejected 
The theory of “comparable worth” rejects market involvement in the determination of pay and substitutes a so-called objective independent assessment of the “value" of the work. While this bill has been changed to allow the use of geographic pay differentials, it then prohibits their use if attached to historically undervalued traditionally female and/or minority job classifications. There is no further explanation of what this means. Many employers use market based salary and wage surveys, which include geographic differentials, industry, revenue, and organization size, to price their jobs.

Supply and Demand
In a free market, the value of a job is determined by the supply and demand of workers in a given profession. Pay levels are the result of supply and demand. The higher the demand for the skill or service, the higher the pay.  Conversely, the lower the demand, the lower the pay. All workers have the opportunity to strive for high demand jobs.  Comparable worth would replace the equality of opportunity with the equality of results, using legislation and government regulation.

For these reasons, The Business Council opposes this legislation and respectfully urges that it not be enacted by the New York State Senate.