Update 5/9/2022: On April 28, 2022, the New York City Council passed an amendment to the Salary Disclosure law, which, among other items, delays the effective date of the salary disclosure requirement from May 15, 2022 to November 1, 2022. The changes are incorporated into the blog below. The amendment is before NYC Mayor Adams for his signature.
Edited Blog, Originally Posted on April 15, 2022.
Recently, the New York City (NYC) Commission on Human Rights (NYCCHR) issued guidance on the new amendment to the NYC Human Rights Law (“Salary Disclosure law” or “law”), which requires certain employers to disclose the salary range on job postings for positions that can or will be performed in NYC. The guidance clarifies which employers are subject to the law and which types of job postings the law applies to, among other items. Though the requirements were originally scheduled to take effect on May 15, 2022, an amendment was passed to delay the effective date to November 1, 2022.
We discussed the Salary Disclosure law in our prior blog, “New York City Will Require Employers to Provide Salary Ranges in Job Postings.”
Based on the new guidance, the Salary Disclosure law:
- Applies to all employers that have 4 or more employees (regardless of whether the 4 employees work in NYC), with at least 1 employee working in NYC;
- Applies to any internal or external advertisement for a job, promotion, or transfer opportunity that can or will be performed in NYC (including positions that can be performed by an employee working remotely in NYC);
- Requires covered employers to post a salary range (e.g., base wage or rate of pay) they are willing to pay for the advertised position. Covered employers can, but are not required to, post other forms of compensation or benefits (e.g., commissions, tips, bonuses, 401k contributions).
Which employers does the new Salary Disclosure law apply to?
The Salary Disclosure law applies to:
- All employers that have 4 or more employees or 1 or more domestic worker, with at least 1 employee working in NYC.
- Owners and individual employers count toward the 4 employees; not all employees need to work in the same work location and employees do not need to all work in NYC.
- Though an amendment was introduced to change the law so that it would only apply to employers with 15 or more employees, this amendment was not passed.
- All employment agencies, no matter their size.
- Employment agencies must ensure that any job listings they promote or seek to fill comply with the Salary Disclosure law.
The law does not apply to temporary help firms that recruit, hire, and assign their own employees to perform work for other organizations, support or supplement another organization’s workforce, or provide assistance in special work situations. On the other hand, employers who work with temporary help firms are required to comply with the Salary Disclosure law if they are a covered employer, as outlined above.
Which job postings does the Salary Disclosure law apply to?
Any internal or external advertisements for a job, promotion, or transfer opportunity that would be performed in NYC.
- Advertisements include a written description of an available job, promotion, or transfer opportunity that is publicized to a potential pool of applicants, regardless of the medium in which the description is disseminated. Covered advertisements include, but are not limited to, postings to internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper ads.
- Performed in NYC means a position that can or will be performed, in whole or in part, in NYC, whether from an office, in the field, or remotely from an employee’s home. Based on this guidance, it appears that the law would apply to advertisements for remote positions since those positions could be performed in NYC. The law does not apply to positions that cannot or will not be performed, at least in part, in NYC.
- Types of Workers: The law applies regardless of whether a position is for part-time or full-time employees, interns, domestic workers, independent contractors, or any other category of worker protected by the NYC Human Rights Law.
It is important to note that the law does not require covered employers to advertise positions; covered employers can hire without advertising a position. Rather, the law requires covered employers to include certain salary information when a job is advertised.
What information must be included in covered job advertisements?
The Salary Disclosure law requires covered employers to post the minimum and maximum salary range they are willing to pay for the job at the time of posting.
- Employers must include the salary range, which includes the base wage or pay, regardless of the frequency of payment (e.g., hourly or annually).
- Employers can, but are not required to, post other forms of compensation or benefits, 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 contributions toward retirement or savings funds (e.g., 401k plans or pension plans);
- Severance pay;
- Overtime pay; or
- Other forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging.
- The posted range must be made in “good faith,” meaning the employer must honestly believe at the time of posting that they are willing to pay a successful candidate the disclosed amount.
- The range cannot be open ended (e.g., cannot be “$15 per hour and up” or “maximum $50,000 per year”), it must be a range. However, if an employer has no flexibility for the salary, the maximum and minimum range can be the same amount (e.g., “$20 per hour”).
What are the penalties for non-compliance with the Salary Disclosure law?
The NYC Commission on Human Rights has the power to accept and investigate complaints of discrimination filed by the public. In addition, the Law Enforcement Bureau can initiate their own investigation based on testing, tips, and other sources of information.
Non-compliant employers will be liable for $0 for the first violation if they cure the violation within 30 days. For subsequent violations, non-compliant employers may be subject to civil penalties of up to $250,000 and may be ordered to pay monetary damages to affected employees Employers may also be required to amend advertisements and postings, update or create policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of relief.
When does the law take effect?
The law is scheduled to take effect on November 1, 2022 (the prior deadline was May 15, 2022).
Employers with 1 or more employees working in NYC (and 4 or more employees in total), should prepare to include salary ranges for any internal or external job postings that can or must be performed in NYC (including remote positions).
- NYC Commission Guidance: Salary Transparency in Job Advertisements
- Salary Disclosure Law: NYC Council Bill Int. 1208-2018
- Amendment to Salary Disclosure Law (Passed on 4/28/22)
- Sequoia Foreword: New York City Will Require Employers to Provide Salary Ranges in Job Postings
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