On December 15, 2021, the New York City (NYC) Council passed a bill that amends the city’s existing NYC Human Rights Law (NYCHRL) requiring employers to disclose salary range on all job postings for positions located in NYC. The amendment gives the NYC Commission on Human Rights (Commission) the authority to issue rules and regulations to implement this new requirement and it is anticipated that additional information will be released by the Commission as the May 15, 2022 effective date approaches. This article provides an overview of what we know so far and highlights key unanswered questions that will hopefully be answered by the Commission’s future guidance.
The law covers NYC employers with four or more employees (unusually including independent contractors) presumably in the geographic boundaries of NYC. It is not clear from the text of the amendment alone whether the threshold count includes employees in the state or nationwide. The Commission is expected to clarify this issue and employers should consult with employment law counsel if they are uncertain whether this law applies to their business.
Salary Range Disclosure Requirement
The amendment will require employers to disclose a salary range “from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.” In addition, employers are also required to include the salary range in all announcements or postings for promotion or transfer opportunities. It is unclear whether the salary range requirement applies to all jobs advertised in NYC, or only postings for jobs that are physically located and will be performed in NYC. For example, it is unclear whether the disclosure requirement would apply to an NYC employer if the position advertised by that same employer is not located within NYC. Another key question is whether the disclosure requirement will apply to a NYC based employer for positions advertised as fully remote and theoretically can be performed outside of NYC. The Commission is expected to clarify these unanswered questions.
While the term “salary range” is contemplated in the text of the amendment, salary itself is not clearly defined and it is not clear whether an employer’s disclosure requirements include wages for non-exempt or hourly positions, or whether it is referring specifically to base salary, total compensation, or another calculation. It is anticipated that the Commission will clarify this requirement further and in the interim employers are encouraged to take the most practical approach based on the employer’s good faith belief of what the position would pay.
Penalties for Non-Compliance
Failure to include this disclosure in job postings will be considered a discriminatory practice under the NYCHRL. While the amendment to the NYCHRL does not include specific penalties for enforcement, we do know that generally the Commission may enforce the NYCHRL and issue penalties of up to $125,000 for violations of the law.
NYC Employer Considerations
NYC employers are encouraged to:
- Review the wage transparency requirements with counsel, along with existing salary ranges for positions to determine if updates are needed;
- Review the employer’s existing job posting process and procedures to ensure that disclosure requirements are incorporated;
- Be on the lookout for additional guidance from the Commission addressing the many unanswered questions in anticipation of the May 15, 2022 effective date.
We will continue to monitor for further developments and will provide updated information on this new NYC salary range disclosure as we continue to learn more.
- NYC Council Bill Int. 1208-2018
- NYC Human Rights Law
- NYC Commission on Human Rights
- Sequoia Forewords:
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