By Catherine Williams, Esq.
New York employers should be aware that Governor Hochul has recently signed an amendment clarifying New York State’s new pay transparency law, which is scheduled to go into effect in September 2023. New York State’s new pay transparency law, Bill No. S9427A, is codified at New York Labor Law § 194-B. It requires employers with 4 or more employees to disclose, with any advertisement for a job, promotion, or transfer opportunity that will be performed at least in part in New York State, (i) the compensation or a range of compensation (defined as the minimum and maximum annual salary or hourly range of compensation that the employer in good faith believes to be accurate at the time of posting), and (ii) the job description, if a job description exists. Employers must also maintain records of compensation ranges and job descriptions. The law further provides that if the compensation for the position is solely commission-based, an employer may satisfy the requirements of the law by disclosing that in writing. The law also prohibits retaliation against applicants and current employees for exercising their rights under the law. (Click HERE for our most recent prior e-Alert about this law, which provides additional details.)
The amendment signed by Governor Hochul, Bill No. S1326, clarifies that the law applies to any advertisement for a job, promotion, or transfer opportunity that will either physically be performed at least in part in New York, or that will physically be performed outside of New York but report in to a supervisor, office, or worksite in New York. This is in contrast to New York City’s pay transparency law, which currently covers any job that “can be” performed within New York City (note, this amendment does not narrow the scope of New York City’s coverage).
Employers with New York employees, or with positions that will be performed remotely from New York or will report to New York, may wish to take steps now to prepare for the law coming into effect, including by establishing good-faith compensation ranges for those positions. Employers should also keep in mind that the New York Department of Labor may issue further guidance prior to the law’s effective date, potentially addressing questions such as whether the law applies to employers with four employees in New York or four employees total (including employees outside of New York), and the length of time that employers must maintain records of compensation ranges and job descriptions.
Separately, employers who anticipate having positions open in New York State in 2023 should also be aware that the legislature is currently considering Bill A03726, which, similar to New York City’s Fair Chance Act, will permit employers to inquire about applicants’ criminal history only after they extend a conditional job offer (unless they are required to make such an inquiry under applicable law), and will also require employers who rescind an offer as the result of such an inquiry to provide a written explanation of the reason for doing so and time for the applicant to respond. This law would take effect immediately upon being passed and signed by the governor. NFC will continue to track this law and report on any updates.
If you need assistance reviewing your policies pertaining to New York’s pay transparency and background check laws, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.