Current status
As we previously discussed, the New York City pay transparency law requires that NYC employers with four or more employees include the salary range of the position in job postings. In March, new legislation was introduced in the New York City Council to amend the law. This bill, if passed, would amend the law in a few critical aspects. Among other things, the amendment would (i) push the effective date of the law from May 15, 2022 to November 1, 2022; (ii) exclude employers with fewer than 15 employees; (iii) change references to the term “salary” to read “hourly or salary compensation”; and (iv) amend the law so that it would not apply to general notices without reference to particular positions and to positions that are not required to be performed at least in part in NYC.
On April 5, the New York City Committee on Civil and Human Rights (Committee) held a hearing, during which it laid over the bill, suspending the vote. The Committee is scheduled to reconvene on May 3, however, the bill is not currently included in the meeting’s agenda. Accordingly, the Committee may not hold a vote prior to the May 15 effective date; if it doesn’t, the law will become effective as originally passed.
Employers should therefore immediately prepare to comply with the law beginning May 15.
NYCCHR guidance
To aide in employers’ compliance efforts, the New York City Commission on Human Rights (NYCCHR) has published a fact sheet providing additional guidance on the law in its current form. Specifically, the fact sheet provides the NYCCHR’s position on the type of postings required, which employers are covered, what a covered advertisement must include, and how the law will be enforced.
Scope of the law
As noted above, the law applies to employers with four or more employees. The NYCCHR has taken the position that an employer will be covered as long as at least one of its employees works in NYC.
The fact sheet provides that 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 used to disseminate the information. The fact sheet specifies that any advertisement 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 from an employee’s home” is covered by the law (emphasis added). Additionally, the posting will be covered by the law regardless of the category of worker it targets, such as full-time, part-time, intern, domestic worker, or independent contractor.
Information required in job advertisements
The fact sheet confirms that the salary range provided in each job posting must include both a minimum and maximum salary and cannot be open ended. However, where there is no flexibility regarding pay for a certain position, the minimum and maximum amount may be identical. Additionally, where a covered advertisement pertains to several job opportunities, multiple ranges specific to each category can be included. The specified salary range must be made in good faith. In other words, the salary range must be the same as what the employer honestly believes at the time it is listing the job posting the employer is willing to pay a successful applicant.
The posting need only include ranges for base wage (i.e. annual salary) or rate of pay (i.e. hourly rate) and does not need to include other types of compensation such as commissions, tips, bonuses, stock, overtime pay, severance pay, and benefit payments. However, an employer has discretion to include this information in their postings.
Enforcement
In the fact sheet, the NYCCHR reminds the public that one of its primary charges is to accept and investigate complaints of discrimination. This suggests that the NYCCHR will use its discrimination investigations as a means to look into potential violations of the salary transparency law. The NYCCHR also notes that it will initiate investigations into the law based on testing, tips, and other sources.
Employers found to have violated the law may have to provide affirmative relief such as amending their postings and updating their policies as well as paying monetary damages to affected employees as well as potential civil penalties up to US$250,000.
Next steps
Employers should review the law, the NYCCHR guidance, and take immediate steps to ensure their job postings will be compliant as of May 15, 2022. If you have further questions regarding how to comply with the law, contact an author of this post or the Hogan Lovells lawyer with whom you typically work.
Authored by Michael DeLarco, Zach Siegel and Shannon Finnegan.
