By Rachel H. Khedouri, Esq.
As we previously reported, as of May 15, 2022, job advertisements in New York City must disclose minimum and maximum salary ranges. [Click HERE for our February 9, 2022 eAlert.] The New York City Commission on Human Rights (“NYCCHR”) has now issued a fact sheet answering some open questions regarding application of this new law (the “Fact Sheet”, available HERE):
1. Which job postings are covered?
The pay transparency requirement applies to any advertisement for a job, promotion or transfer opportunity in New York City. “Advertisement” is defined by the NYCCHR to mean “a written description . . . that is publicized to a pool of potential applicants” in any medium, including postings on internal bulletin boards or the Internet, printed flyers and newspaper listings.
The Fact Sheet makes clear that employers are not required to use advertisements to hire and the obligation to disclose salary range does not apply to opportunities that are not advertised.
2. Does the law apply to employers based outside of New York City?
Yes, provided they have a total of four or more employees (or one or more domestic workers) and at least one of those employees works in New York City. The law applies to employment agencies regardless of size, but temporary help firms that hire a pool of their own employees to perform work for other organizations are not covered.
3. Does the pay transparency requirement cover remote or field workers?
Yes. The law applies to advertisements for a job, promotion or transfer opportunity “that can or will be performed, in whole or in part, in New York City”, regardless of whether the employee is working out of an office, in the field or remotely from their home in the city of New York.
4. Are independent contractors included?
Yes. All workers that are protected by the New York City Human Rights Law are equally protected by the pay transparency law – including independent contractors, full-time employees, part-time employees, interns, and domestic workers.
5. What does “salary range” encompass?
According to the NYCCHR’s guidance, employers must disclose both the minimum and the maximum salary that they in “good faith” believe they are willing to pay for the advertised job, promotion or transfer opportunity – that is, the salary range “the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful applicant(s).” Salary includes the base wage or rate of pay, without consideration of other components of compensation such as commissions, bonuses, overtime pay, severance, employer contributions to retirement or savings plans, paid or unpaid time off or health insurance.
6. Who is responsible for enforcing the salary transparency rules?
The NYCCHR will accept and investigate complaints and the Law Enforcement Bureau will initiate its own investigations of discrimination related to pay transparency. Potential penalties for violations include monetary damages and civil penalties up to $250,000 along with affirmative relief such as requirements that the employer amend advertisements, conduct training and provide notices to employees or applicants.
*Stay tuned: While employers must prepare to comply with the law as is, pending New York City Council legislation recently introduced would amend the pay transparency law to, among other things, exclude employers with less than 15 employees from these posting requirements and delay the effective date to November 1, 2022. Significantly, the proposed amendment would exclude any positions that are not required to be performed (at least in part) in New York City. We will continue to monitor the City Council’s proceedings and report on any significant changes.
As a reminder, similar laws exist in a growing number of states. Multistate employers looking to post open positions or promote current employees should take steps to make sure their postings meet the requirements of all applicable pay transparency laws. If you need assistance preparing compliant job postings or have any questions on pay transparency laws, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.