LAB-03-16-00009-P Employer Imposed Limitations on the Inquiry, Discussion, and Disclosure of Wages

1/20/16 N.Y. St. Reg. LAB-03-16-00009-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 3

January 20, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF LABOR

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. LAB-03-16-00009-P

Employer Imposed Limitations on the Inquiry, Discussion, and Disclosure of Wages

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 194 to Title 12 NYCRR.

Statutory authority:

Labor Law, sections 21, 194 and 199

Subject:

Employer Imposed Limitations on the Inquiry, Discussion, and Disclosure of Wages.

Purpose:

This regulation sets forth standards for limitations on inquiry, discussion, or the disclosure of wages amongst employees.

Text of proposed rule:

Part 194 Pay Equity

Subpart-1 General Provisions

§ 194-1.1 Prohibited Practices

No employer shall prohibit an employee from inquiring about, discussing, or disclosing the wages of such employee or other employee, except as otherwise provided herein.

§ 194-1.2 Definitions

For the purposes of this part:

(a) The terms employee and employer shall be as those terms are defined in Section 190 of the Labor Law.

(b) Consent shall mean an express, advance, authorization given voluntarily by the employee, and consent may be withdrawn by an employee at any time.

194-1.3 Employer Imposed Limitations on the Inquiry, Discussion, and Disclosure of Wages

An employer may, in a written policy provided to an employee either electronically, through publicly available posting, or by paper copy, place reasonable limitations on the time, place and manner that an employee may inquire about, discuss, or disclose wages. Such 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. An employer shall not impose restrictions on employees in such a way that unreasonably prohibit inquiry, discussion, or disclosure of wages at the worksite and/or during work hours, directly or in practice. An employer may prohibit an employee from discussing or disclosing the wages of another employee unless the other employee provides verbal or written consent, either directly or indirectly. An employer may not avail itself to the affirmative defense contained in Section 194(4)(c) of the Labor Law, unless the employer can demonstrate that the written policy was provided to the relevant employee(s) in accordance with this Part. Copies of written policies must be maintained by the employer during the period of the applicability and for six years following such period.

194-1.4 Federal and State Law

The provisions of this Part shall not be construed to diminish or waive any rights or obligations of any employee pursuant to any other law, regulation, or collective bargaining agreement.

194-1.5 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provisions or applications. To this end, the provisions of this Part are declared to be severable.

Text of proposed rule and any required statements and analyses may be obtained from:

Michael Paglialonga, NYS Department of Labor, Building 12, State Office Campus, Room 509, Albany, NY 12240, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

Statutory Authority: Labor Law §§ 21(11), § 194(4)(b), § 199.

Legislative Objectives: Sections 21(11) and 199 of the Labor Law provide the Commissioner with the authority to adopt regulations to carry out the provisions of the Labor Law. Section 194(4)(b) of the Labor Law directs the Commissioner to adopt standards for reasonable workplace and workday limitations on the time, place, and manner for inquiries, discussion of, or the disclosure of wages. This regulation sets forth such standards.

Needs and Benefits: This rulemaking is directed by the Legislature in Section 194 of the Labor Law, which was amended by Chapter 362 of the Laws of 2015, and provides employers with standards for limitations on inquiry, discussion, or disclosure of wages amongst employees. Employees will benefit significantly from the protections now afforded to the inquiry, discussion, or disclosure of wages.

Costs: The Department estimates that there will be no significant or direct costs to the regulated community to implement this rulemaking. The Department does not anticipate any significant increased costs as a result of this rulemaking.

Local Government Mandate: This rulemaking does not impose any mandate upon local governments or municipalities as they are excluded from the coverage of this rule.

Paperwork: This rulemaking does not impact any governmental reporting requirements currently required in either statute or regulation. Employers who have policies establishing limitations on the inquiry, discussion, or disclosure of wages will be required to communicate such policies in writing. Employers will also be required to maintain a copy of policies for six years, consistent with the recordkeeping requirements in Article 6 of the Labor Law.

Duplication: This rulemaking does not duplicate, overlap or conflict with any other State or federal requirements.

Alternatives: There were no significant alternatives considered. The Department is carrying out the directive of the Legislature in adopting Chapter 362 of the Laws of 2015 amending Section 194 of the Labor Law.

Federal Standards: This rulemaking is unrelated to any Federal rule or standard.

Compliance Schedule: This rulemaking shall become effective upon publication of its adoption in the State Register.

Regulatory Flexibility Analysis

Effect of rule: This regulation sets forth standards for reasonable workplace and workday limitations on the time, place, and manner for inquiries, discussion of, or the disclosure of wages.

Compliance requirements: This rulemaking does not impact any governmental reporting requirements currently required in either statute or regulation. Employers who have policies establishing limitations on the inquiry, discussion, or disclosure of wages will be required to communicate such policies in writing. Employers will also be required to maintain a copy of policies for six years, consistent with the recordkeeping requirements in Article 6 of the Labor Law.

Professional services: No professional services would be required to effectuate the purposes of this rulemaking.

Compliance costs: This rulemaking will not impose any costs or impact local governments. The Department estimates that there will be no significant or direct costs to small businesses to implement this rulemaking. The Department does not anticipate any significant increased governmental costs as a result of this rulemaking.

Economic and technological feasibility: The rulemaking does not require any use of technology to comply.

Minimizing adverse impact: The Department does not anticipate that this rulemaking will adversely impact small businesses or local government. Since no adverse impact to small business or local government will be realized, it was unnecessary for the Department to consider approaches for minimizing adverse economic impacts as suggested in SAPA § 202-b(1).

Small business and local government participation: The Department will ensure that small businesses and local governments will have an opportunity to participate in the rule-making process. The Department will elicit input from small businesses and local governments during the public comment period.

Initial review of the rule pursuant to SAPA § 207: Initial review of this rulemaking shall occur no later than the third calendar year in which it is adopted.

For rules that either establish or modify a violation or penalties associated with a violation: While this rule does not establish a violation or modify a violation or penalties associated with a violation, it is worth noting that Chapter 362 of the Laws of 2015, which directs the promulgation of this rule, increases liquidated damages for violations associated with this rulemaking to 300 percent of the wages found to be due.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas: The Department of Labor (hereinafter “Department”) anticipates that the adoption of this rulemaking will have a positive or neutral impact upon all areas of the State; there is no adverse impact anticipated upon any rural area of the State resulting from this rulemaking.

2. Reporting, recordkeeping and other compliance requirements: This rulemaking does not impact any governmental reporting requirements currently required in either statute or regulation. Employers who have policies establishing limitations on the inquiry, discussion, or disclosure of wages will be required to communicate such policies in writing. Employers will also be required to maintain a copy of policies for six years, consistent with the recordkeeping requirements in Article 6 of the Labor Law.

3. Professional services: No professional services will be required to comply with this rule.

4. Costs: The Department estimates that there will be no significant or direct costs on employers and their agents in rural areas in the State to implement this rulemaking. The Department does not anticipate any significant increased costs as a result of this rulemaking.

5. Minimizing adverse impact: The Department does not anticipate that the adopted changes will have an adverse impact upon any region of the state. As such, different requirements for rural areas were not necessary.

6. Rural area participation: The Department has ensured that employers from all regions of the State, including rural areas, will have an opportunity to participate in the rule-making process. The Department will continue to elicit input from members of the regulated community in rural areas during the public comment period.

Job Impact Statement

Nature of impact: The Department of Labor (hereinafter “Department”) projects there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this proposed rulemaking. This rulemaking sets forth standards for reasonable workplace and workday limitations on the time, place, and manner for inquiries, discussion of, or the disclosure of wages.

Categories and numbers affected: The Department does not anticipate that this rulemaking will have an adverse impact on jobs or employment opportunities in any category of employment.

Regions of adverse impact: The Department does not anticipate that adoption of this rulemaking an adverse impact upon jobs or employment opportunities statewide or in any particular region of the State.

Minimizing adverse impact: Since the Department does not anticipate any adverse impact upon jobs or employment opportunities resulting from this rulemaking, no measures to minimize any unnecessary adverse impact on existing jobs or to promote the development of new employment opportunities are required.

Self-employment opportunities: The Department does not foresee a measureable impact upon opportunities for self-employment resulting from adoption of this rulemaking.

Initial review of the rule pursuant to SAPA § 207: Initial review of this rulemaking shall occur no later than the third calendar year in which it is adopted.