Achieve Pay Equity Act: Are Employers Ready To Defend Their Pay Practices?

Pay equity issues are hot these days, in the boardroom and in the courtroom. Ask any employment lawyer and they will probably tell you that equal pay is likely to be one of the hottest topics in 2017 and beyond. This is doubly so for New York employers, due in no small part to the state's Achieve Pay Equity Act (APEA).

The law, which went into effect about one year ago in early 2016, greatly expands employee pay equity protection for employees in New York well beyond the federal Equal Pay Act (EPA). Recent high-profiles cases filed in New York federal court, coupled with the treble damages available under the New York APEA, suggest that pay equity litigation will increase in the coming years. Now is the time for New York employers to take action to protect themselves before the likely onslaught of litigation under the state's pay equity statute.

Achieve Pay Equity Act

Prior to last January, New York's pay equity law mimicked the federal EPA. In fact, the two laws still provide for the nearly identical prohibition on unequal pay for work requiring "equal skill, effort, and responsibility, and which is performed under similar working conditions." As the U.S. Court of Appeals for the Second Circuit recently reiterated, in order to set forth a prima facie case under the EPA, a plaintiff must demonstrate that:

the employer pays different wages to employees of the opposite sex; the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and the jobs are performed under similar working conditions. See Chiaramonte v. The Animal Medical Center, 2017 WL 390894, at *1 (2d Cir. Jan. 26, 2017) (citations omitted). Ultimately, the critical question under the EPA "is the equal work inquiry, which requires evidence that the jobs compared are substantially equal." Id. (quotations omitted). To make this determination, the court must compare "actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice." Id. (citations omitted). Although there haven't been any notable court cases interpreting the APEA to date, the nearly identical language in the two laws prohibiting equal work for unequal pay suggests the requirements for a plaintiff to set forth a prima facie case under New York law will continue to track federal law.

However, New York's APEA contains a number of significant provisions that make the New York law much more...