New York Employment Law Update – January 2017

New York

NYSDOL Adopts New Regulations on Employer’s Right to Impose Limitations on Employee Discussion of Wages

The New York State Department of Labor (NYSDOL) has adopted new regulations on the subject of “Employer Imposed Limitations on the Inquiry, Discussion and Disclosure of Wages,” adding Part 194, “Pay Equity,” to Title 12 of the New York Codes, Rules and Regulations (12 NYCRR).

New York Labor Law § 194 provides that employers cannot prohibit employees from inquiring about, discussing, or disclosing their own wages or the wages of other employees. The law also provides that employers may, through a written policy provided to all employees, establish reasonable workplace and workday limitations on the time, place, and manner for employees to make inquiries about, discuss, or disclose wages.

The new rule implements the law and allows for the employer’s policy to be provided either through electronic posting or paper copy. The rule requires that the employer’s limitations must be justified without reference to the content of the regulated speech, narrowly tailored to serve a significant interest, and leave open ample alternative channels for the communication of information. Employers may not impose restrictions that would unreasonably preclude or prevent the inquiry, discussion, or disclosure of wages at the worksite and/or during work hours.

Employers may prohibit an employee from discussing or disclosing the wages of another employee unless the other employee provides permission. Employers may also limit an employee who has access to wage information of other employees as part of that employee’s essential job functions.

The rule defines “permission” to mean an express, advance, authorization given voluntarily by the employee, and permission may be withdrawn by the employee at any time. Permission in writing is not required.

The rule also requires employers to maintain copies of its written policies during the period of applicability and for six years after such period.

The rule does not provide new posting requirements but the department has announced it will be revising the “Notice of Rates of Pay” posting, required to be provided to employees under Labor Law § 195, on the department’s website to include a statement on employees’ right to discuss wages under § 194 and this rule.

The regulations go into effect on February 1, 2017.

Read the New Regulations (Page 9)