On May 12, 2022, New York City Mayor Eric Adams signed into law the Amended New York City Pay Transparency Law, Int. 134-A, extending the effective date of that statute from May 15, 2022 to November 1, 2022. The pay transparency law (“Law”) requires New York City employers and employment agencies with four or more employees, or employees or agents thereof (“Covered Employers”), to include compensation information in postings for new employment opportunities, internal promotions and transfers that they choose to post. The amendments clarify that (1) positions “that cannot or will not be performed, at least in part, in” New York City are exempt from the pay posting requirement; (2) either annual salary or hourly wage information must be disclosed in the posting; (3) a Covered Employer has a 30-day opportunity to cure, with no penalty, in response to a first administrative complaint of non-compliance; and (4) only current employees have a private right of action against their employers. The New York City Commission on Human Rights (“Commission”) recently issued updated guidance to assist Covered Employers with the recent amendments.
In order to be ready for the new deadline, Covered Employers should consider the following as they prepare to ensure job postings and related practices comply by November 1, 2022.
Which Employers Are Covered by the Law?
The Law applies to employers with four or more employees, or one or more domestic workers, covered by the New York City Human Rights Law (“NYCHRL”), with at least one of the employees working in New York City. The Law counts owners and individual employers as “employees” towards the employee threshold. Employment agencies are covered by the Law regardless of their size, but temporary help firms seeking applicants to join their pool of workers are not. Covered Employers who work with temporary help firms are still required to follow these pay transparency requirements.
Which Job Listings are Covered by the Law?
Any advertisement for a job, promotion, or transfer opportunity that would be performed in New York City is covered by the Law and requires a pay range in the posting itself. An advertisement is “a written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants.” Covered listings include postings on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements.
These requirements apply to job postings for applicants of any kind including full-time and part-time employees, independent contractors, domestic workers, interns or any other category of worker protected by the NYCHRL, whether paid hourly or through an annual salary. Consistent with the exemption set forth in the amendment, the Commission’s guidance further provides that Covered Employers are required to follow the Law “when advertising for positions 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 the employee’s home.”
Covered Employers are neither required to create an advertisement for a job, promotion or transfer opportunity in order to hire nor prohibited from hiring without using an advertisement. The Law also does not apply to the following:
- A job advertisement for temporary employment at a temporary help firm;
- A general notice that an employer is hiring without reference to any particular position; and
- Positions that cannot or will not be performed, at least in part, in New York City.
What Information Must Be Included?
Covered Employers must state the minimum and maximum pay they in “good faith” believe at the time of the posting they would pay for the advertised job, promotion, or transfer opportunity. According to the Commission, “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 applicant(s).” Covered Employers may, but are not required, to include other forms of compensation or benefits such as health or life insurance, paid time off, or bonuses.
The salary range for a posting cannot be open ended. For example, “$15 per hour and up,” or “maximum of $60,000 per year” would not comply with the Law. If a Covered Employer does not have flexibility with the salary they are offering, the minimum and maximum salary may be identical. Advertisements that cover multiple jobs, promotions, or transfer opportunities can, however, include salary ranges that are specific to each opportunity. The salary includes the base wage or rate of pay, regardless of the frequency of payment.
What are the Penalties for Non-Compliance?
Covered Employers facing potential civil penalties for violation of the Law will have 30 days to cure their first violation. Specifically, within 30 days of service of a complaint, an employer may submit proof of its cure of the violation to the Commission. If accepted by the Commission as proof of cure, the submission “shall be deemed an admission of liability for all purposes.” If the proof is accepted by the Commission, the Covered Employer will not be required to pay a civil penalty. If the Commission determines there has not been a cure, the Covered Employer will have fifteen days upon receiving notice of that determination to seek review with the commission. Following this first violation, or if the Covered Employer fails to cure, they may be required to pay monetary damages to affected employees and civil penalties of up to $250,000 for violations. Aggrieved individuals may also file a complaint with the Commission. A lawsuit may not, however, be asserted against a Covered Employer under this Law unless the claimant 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. In other words, aggrieved job applicants will not have a private right of action against prospective employers for violation of the Law.
For further information, please contact:
Ira M. Saxe, Partner, Crowell & Moring