The pay transparency movement has an undeniable leader: New York. Pay transparency laws have recently proliferated in the Empire State, including a first-of-its-kind New York City law mandating pay transparency in all postings for jobs that could even conceivably be performed there. In this article, we summarize the pay transparency laws that will or may be effective in New York, and provide some practical guidance on how New York employers should prepare to comply.
New York City (Effective Nov. 1, 2022)
The New York City Salary Transparency in Job Advertisements Law (the NYC Law) will take effect on Nov. 1, 2022. It amends the New York City Human Rights Law to make it unlawful for a covered employer to advertise, either internally or externally, a “job, promotion, or transfer opportunity” without stating the minimum and maximum salary or hourly wage that the employer “in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.” Additional key features of the NYC Law are as follows:
• Employers are covered under the NYC Law if they have four or more employees, or one or more domestic worker, as long as at least one works in New York City. All full-time, part-time, permanent and temporary employees, interns, and independent contractors and business owners count towards the threshold. Employment agencies who place advertisements for employers are covered regardless of size, but the NYC Law does not apply to temporary help firms recruiting applicants to join their pool of available workers.
• A job advertisement is covered if it is for a position that “can or will be performed, in whole or in part, in New York City,” whether from an office, in the field, or remotely. Advertisements for a job that, with certainty, will not performed within New York City do not appear to be covered. However, a job that could, hypothetically, be filled by someone that would work (including remotely) in the City is covered.
• A covered advertisement must include an actual pay range, and cannot be open-ended (e.g., “$20 per hour and up”). If there is no flexibility in salary, the minimum and maximum salary may be identical. The pay range must list the “base annual or hourly wage or rate of pay,” but need not include other forms of compensation or benefits such as health insurance, paid time off, overtime pay, or bonuses.
• Both external and internal job advertisements are covered, including postings on internal bulletin boards.
• Employers are permitted to hire without using an advertisement.
• The NYC Law creates a private right of action for a current employee, but not a job applicant.
• A violation of the NYC Law may result in a civil penalty of up to $250,000. However, the penalty for a first-time violation is $0, provided the employer cures the violation within 30 days of service of a complaint.
