Governor Cuomo Signs Executive Orders to Close the Wage Gap as part of “New York Promise” Agenda
Authors: T. Scott Kelly (Birmingham), Hera S. Arsen, Ph.D. (Torrance)
Published Date: January 13, 2017
There is no doubt that pay equity and pay data have both been a major focus of the federal government enforcement agenda during the Obama administration. While we wait to see if and how the Trump administration will address equal pay enforcement, several states continue to advance measures on pay equity. For example, Texas is considering a pay equity bill prohibiting employers from asking about an applicant’s wage history. Earlier this week, on January 9, 2017, New York Governor Andrew Cuomo signed two executive orders “to put New York on the fast track to eliminate the wage gap.” The executive orders, which Governor Cuomo signed as part of his 12th proposal of the 2017 State of the State Agenda, prevent employers from asking applicants about their salary histories and require certain government contracts to include data on employees’ job titles and salaries.
Executive Order 161: Ensuring Pay Equity by State Employers
Executive Order 161 prohibits state entities from asking or mandating an applicant to “provide his or her current compensation, or any prior compensation history,” before offering a conditional offer of employment with compensation. Notably, the executive order does not prevent applicants from volunteering information about their compensation histories. After offering employment to an applicant, a state entity “may request and verify compensation information.” State entities that already have such compensation information are prohibited from relying on it to determine an applicant’s salary (unless doing so is required by law or a collective bargaining agreement).
The executive order defines state entities as
“all agencies and departments over which the Governor has executive authority”; and
“all public benefits corporations, public authorities, boards, and commissions, for which the Governor appoints the Chair, the Chief Executive, or the majority of Board Members, except for the Port Authority of New York and New Jersey.”
Executive Order 162: Ensuring Pay Equity By State Contractors
Executive Order 162 requires state agencies and authorities to include a provision in state contracts “requiring contractors to agree to include detailed workforce utilization reports” that include the job titles and salaries of each employee performing work on the contract. Contractors that are unable to identify which of its employees are working directly on the state contract must include the job titles and salaries “of each employee in the contractor’s entire workforce.” The requirement to include these reports is in addition to contractors’ preexisting obligation to provide equal employment opportunity information. Similarly, the executive order requires state agencies and authorities to include a provision in their agreements “imposing the same requirement on all subcontractors for their employees.”
Contractors and subcontractors will be required to report this information to state agencies on a quarterly basis for all prime contracts with a value in excess of $25,000. Contractors on prime contracts with a value in excess of $100,000 must report their data on a monthly basis.
The executive order applies to “all State contracts, agreements, and procurements issued and executed on or after June 1, 2017.”
Governor Cuomo commented: “At these stormy times of instability and confusion, New York must serve as a safe harbor for the progressive principles and social justice that made America.” Employers should stay mindful of pay equity issues in the workplace as it evident that some states intend to advance the issue.
Scott Kelly is a shareholder in the Birmingham, Alabama office of Ogletree Deakins and co-chairs the firm’s Affirmative Action/OFCCP Compliance Practice Group, whose experienced attorneys counsel and defend federal contractors and subcontractors throughout the United States on jurisdictional, compliance, and enforcement issues involving the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Scott’s national practice includes representing...
Hera S. Arsen, J.D., Ph.D. is Senior Marketing Counsel overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera...