Written By: Francine Alfandary and Austin Ochoa
New York City has enacted a pay transparency law which requires employers to disclose salary ranges in job postings beginning on November 1, 2022.
The pay transparency law requires all NYC employers with four or more employees in New York State (at least one of whom is in NYC) to include the minimum and maximum salary range in all advertisements for jobs, promotions, and transfers that the employer believes in good faith it would pay at the time of the posting.[1]
“Good faith” means the salary range the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful job applicant(s).[2]
It is considered an “unlawful discriminatory practice” for a covered employer or its agent to advertise a job, promotion, or transfer without stating the salary range for such position.[3] Employers must include both a minimum and a maximum salary; the range cannot be open ended.[4] For example, “$15 per hour and up” or “maximum $50,000 per year” would not be consistent with the new requirements.
According to the latest guidance published by the New York City Commission on Human Rights (NYCCHR):
- Salary includes the base wage or rate of pay, regardless of the frequency of payment.
- Salary does not include other forms of compensation or benefits offered, such as:
- Health, life, or other employer-provided insurance;
- Paid or unpaid time off work, such as paid sick or vacation days, leaves of absence, or sabbaticals;
- The availability of or contributions towards retirement or savings funds, such as 401(k) plans or employer-funded pension plans;
- Severance pay;
- Overtime pay; and
- Other forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging.
If an employer has no flexibility in the salary they are offering, the minimum and maximum salary may be identical.[5] For example, “$20 per hour” would be consistent with the new requirements.
The law applies to all employers with (i) at least one employee in New York City and (ii) four or more employees, in total, in New York State. Included in the four-employee threshold are (i) the business owner(s), (ii) independent contractors, and (iii) the employer’s parent, spouse, domestic partner, or child, if employed by the employer.[6] It is possible that the 4-employee threshold may change before the law takes effect on November 1.
The four employees do not need to work in the same location, and they do not need to all work in NYC.[7] As long as at least one of the employees works in NYC, the workplace is covered.[8]
The law applies to job postings for any position that can or will be performed, in whole or in part, in NYC, whether from an office, in the field, or remotely from the employee’s home.[9]
Under the law, an “advertisement” is a “written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicant.”[10] Advertisements are covered regardless of the medium in which they are disseminated.[11]
Importantly, the law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire new employees.[12]
The law does not apply to job postings for temporary employment at “temporary help firms” as such firms are already required to provide wage range information in compliance with the New York State Wage Theft Prevention Act.[13]
Employment agencies are covered by the law, regardless of their size, and must ensure that any job listings they promote or seek to fill comply with the new salary transparency requirements.
NYCCHR is authorized to implement the law through the promulgation of rules.[14] NYCCHR may impose civil penalties, ranging from $125,000 to $250,000, for willful violations of the law.[15]
Covered employers who violate the law may also have to pay monetary damages to affected employees and be required to amend job advertisements, create or update hiring policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief.[16] However, NYCCHR has stated that its “immediate goal is not to penalize, but to educate and work together with the city’s business community.”[17]
Covered employers should start taking steps to ensure compliance with the pay transparency law’s requirements. Please contact Francine Alfandary: falfandary@pearlcohen.com with any questions.
[2] NYC Commission on Human Rights, Salary Transparency in Job Advertisements Factsheet, March 22, 2022.
[4] NYC Commission on Human Rights, Salary Transparency in Job Advertisements Factsheet, March 22, 2022.
[5] Id.
[7] NYC Commission on Human Rights, Salary Transparency in Job Advertisements Factsheet, March 22, 2022.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[14] Id.
[15] NYC Human Rights Law § 8-126.
[16] NYC Commission on Human Rights, Salary Transparency in Job Advertisements Factsheet, March 22, 2022.
[17] The Wall Street Journal, You’ll Soon Get to See Pay on NYC Job Postings, January 28, 2022.
