NYC Amends Pay Transparency Law; Now Expected To Go Into Effect November 1, 2022May 2, 2022
On April 28, 2022, by a vote 43-8, the New York City Council approved an amendment to the NYC Salary Transparency in Job Advertisements law (“the Law”). As reported in our previous alert, the Law, which was set to become effective May 15, states that it shall be an unlawful discriminatory practice under the New York City Human Rights Law to post any job listing that does not include the minimum and maximum salary offered for the position. After much pushback from the business community, the NYC Council voted in favor of an amended bill (the “Amendment”), which, if signed into law by Mayor Eric Adams, changes the effective date of the Law from May 15 to November 1, 2022, giving business owners more time to comply.
The Amendment clarifies that advertisements for any job, promotion or transfer opportunity will have to include a statement of either a minimum and maximum annual salary or the minimum and maximum hourly wage and will apply to advertisements seeking both exempt employees who earn a salary, and non-exempt employees, who may be paid on a salary or hourly basis. The Amendment also makes clear that the requirement will not apply to positions that “cannot or will not be performed, at least in part,” in the city of New York. The City Council clarified that fully remote positions that could potentially be performed by a New York City resident are not exempt from the pay transparency requirement. A copy of the City Council’s press release concerning the Amendment is available here: Council Votes to Clarify and Improve Salary Transparency Law - Press (nyc.gov).
A notable change made by the Amendment is that a person would not be able to bring a lawsuit against an employer based on this law unless that individual is a current employee who is bringing an action against their employer for advertising a job, promotion or transfer without posting a minimum and maximum hourly wage or annual salary. Thus, job applicants who are not current employees would be unable to bring a lawsuit for violations; they would instead be limited to filing complaints with the New York City Commission on Human Rights (the “Commission”). Finally, the Amendment clarifies that the penalty for the first violation of this law would be $0 provided that employers cure the violation within 30 days to the Commission’s satisfaction, although such cure would constitute an admission of liability.
Summary and take aways for businesses:
- The Law applies to all employers with four or more employees.
- If signed into law, it shall be an unlawful discriminatory practice for an employment agency, employer, or employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum annual salary or hourly wage for such position in such advertisement.
- In stating the minimum and maximum annual salary or hourly wage for a position, the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.
- Salary includes the base wage or rate of pay. Salary does not include other forms of compensation or benefits offered in connection with the advertised job, promotion or transfer opportunity (i.e., advertisement does not have to include: health insurance, time off, severance pay, overtime pay, commissions, tips, bonuses, stock, 401(K) plans).
- An advertisement is a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants, regardless of the medium (i.e., includes internal bulletin boards, internet advertisements, printed flyers distributed at job fairs and newspaper advertisements).
- The Law allows employers to cure first-time violations before a monetary fine is issued by the Commission, although such a cure would constitute an admission of liability.
- The Law does not apply to positions that cannot or will not be performed, at least in part, in the city of New York.
- The Law applies to job postings for virtual positions – (remote positions are excluded only if no part of the job can be done in the city).
- The Law does NOT apply to a job advertisement for temporary employment at a temporary help firm as such term is defined by the labor law.
- The Commission is the exclusive agency to enforce the law and assess fines, but current employees maintain an ability to sue in court in relation to job postings by their employers.
- While the Amendment and a 2-page fact sheet issued in March by the Commission answer certain questions about the Law, ambiguities remain, and the Commission could issue additional guidelines and clarifications prior to the effective date.
Please contact a member of Herrick’s Employment Group with any questions.
Carol M. Goodman at +1 212 592 1465 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
© 2022 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.