As anticipated, the New York City Council passed an amendment clarifying the recent NYC law which requires employers to publish good faith salary ranges in any advertisement for a job, promotion, or transfer.
Now, the law won’t take effect on May 15, 2022, as originally planned. Instead, it will be delayed until November 1, 2022.
Other changes to make the law clearer include that it does not apply to positions that can’t or won’t be performed, at least in part, in New York City. However, the amendment doesn’t address remote work, but additional guidance on the issue is expected from the NYC Commission on Human Rights.
Interestingly, the amendment creates a limited private right of action. The law states:
“[E]employee may bring such an action against their current employer for an alleged violation of this subdivision in relation to an advertisement by their employer for a job, promotion or transfer opportunity with such employer.”
However, the private rights of action available under the law are limited. It is restricted to current employees—rather than including applicants—who may bring an action to enforce the law against their employers. But theirs is no provision in the amendment restricts the Commission’s power to subject any employer to civil penalties.
There is no penalty for the first violation, but employers have 30 days to correct the violation. Employers are subject to the standard penalties for violations of the NYC Human Rights Law, such as up to $250,000 for willful violations, for subsequent violations.
Finally, employer should note that advertisements for employment are required to state the minimum and maximum annual salary or hourly wage for the position.
The New York City Commission on Human Rights released official Guidance on the upcoming pay transparency law that requires all advertisements for jobs, promotions, and transfer opportunities for positions performed in the City have a minimum and maximum salary range.
The law currently applies to all NYC employers that employ four or more people. Employers must include independent contractors furthering the employer’s business as well as an employer’s relatives who are working for the employer in the count of persons when determining whether the law applies to their business. All employee, no matter their work location, must be counted and that only one must work in the City for an employer to be covered. This means that employers throughout New York may be captured by this requirement and should be mindful of employees who are working remotely and are NYC residents.
However, guidance makes clear that there is no obligation to advertise opportunities (including internal opportunities) and provides specifically that salary postings are not required for opportunities that are not advertised. It also notes that the law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement to hire.
Clarification of the Term “Salary”
Employers must post the minimum and maximum “salary” that the employer in good faith thinks it would pay for any advertised position. The Guidance states that the term “salary” encompasses base wages (e.g., $15 per hour) and other rates of pay (e.g., $50,000 annual salary); moreover, the range can’t be open ended (e.g., $15 per hour and up).
In addition, the Commission on Human Rights explains in the Guidance that “[s]alary does not include other forms of compensation or benefits offered in connection with the advertised [position]” and gives examples of compensation that does not need to be included, such as:
- Commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging;
- Benefits (e.g., group health benefits, retirement benefits, and paid or unpaid time off);
- The availability of or contributions towards retirement or savings funds, such as 401(k) plans or employer-funded pension plans;
- Overtime pay; and
- Severance pay.
As such, only the base wage or salary for the advertised position must be stated. Salary does not include other forms of compensation or benefits offered in connection with the advertised job,
The Guidance counsels employers (no matter their location) to comply with 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.” [Emphasis added] Thus, employers who have at least one employee in New York City should be cognizant of the need to post salary ranges even for remote positions, if the job might be filled by a City resident.
What if You Fail To Comply?
An employer’s failure to include salary ranges in a job posting will constitute an unlawful discriminatory practice under the NYCHRL. Any violation of the Amendment could result in action by the CCHR, which may impose civil penalties of up to $125,000 for violations, and up to $250,000 if the violation were found to be willful, wanton, or malicious. In addition, employees may bring claims under the Local Law before the CCHR or in court, where the employee will have the right to a jury trial. In such proceedings, employees may be awarded back pay, and compensatory and punitive damages, as well as their attorneys’ fees.
What Should An Employer Do?
- Determine if you are covered – i.e., you have at least one employee in New York City and four employees in total;
- Determine if your advertisement is covered – i.e., it can be performed in whole or in part by someone in New York City;
- Learn what an “advertisement” means under the law: a written description of a job, promotion, or transfer opportunity that is publicized to a pool of potential applicants (such as internal bulletin boards, internet advertisements, flyers at a job fair, or newspaper advertisements). Some examples of job advertisements that are covered by the Law are:
- Postings on internal bulletin boards;
- Internet advertisements;
- Printed flyers distributed at job fairs; and
- Newspaper advertisements.
* But This Could Be Much Ado About Nothing
A bill is pending to amend the salary disclosure law to exclude employers with fewer than 15 employees and to move the effective date of the law to November 1, 2022. The proposal would also add language to clarify that the law applies to both hourly and salaried positions and that it does not apply to general notices that an employer is hiring (without reference to a particular position) or to positions that are not required to be performed, at least in part, in the City of New York. Further, an individual wouldn’t be able to bring a lawsuit against an employer based on this law unless that he or she is a current employee who’s bringing an action against their employer for advertising a job, promotion or transfer without posting a minimum and maximum hourly wage or annual salary. The bill would also clarify that the penalty for the first violation of this law would be $0, and employers would have 30 days to correct the violation. Effectively, the amendment guts the provisions for small businesses.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.