Employers with job postings in New York City should be ready to update their job postings to ensure compliance with the NYC Salary Transparency Law. This law, initially slated to take effect on May 15, 2022, is now set to take effect on November 1, 2022.
The Law
Under the NYC Salary Transparency Law, any job posting for a position that will be performed either entirely, or at least in part, in New York City must include in its advertisement a minimum and maximum salary range, which an employer in good faith believes at the time of posting they are willing to pay for the advertised job, promotion or transfer opportunity. This requirement applies to both external and internal postings for positions that will be or may be performed, at least in part, in New York City. This law does not apply to postings for temporary employment at a temporary help firm.
Guidance from the New York City Commission of Human Rights clarifies that the law requires a salary range, and cannot be open ended. They provide as examples, “$15 per hour and up” or “maximum $50,000 per year” as being inconsistent with the law’s requirements. Postings that have multiple job listings, should include separate ranges for each job included in the advertisement.
Covered Employers
This law applies to all employers that have four or more employees or one or more domestic workers. As with other provisions of the NYCHRL, owners and individual employers count towards the four employees. The four employees do not need to work in the same location, and they do not need to all work in New York City. As long as one of the employees works in New York City, the workplace is covered. However, the law only applies to positions that will be performed, at least in part, in New York City. Accordingly, positions that will not be performed in New York City will not be subject to this requirement; however, there may be other local or state rules that impose similar requirements for job postings, so it is always good practice to review all posting requirements.
Employment agencies are also covered by the new law, regardless of their size. As such, employment agencies must ensure that any job listings they promote or seek to fill comply with the new salary transparency requirements.
Temporary Help Firm Exception: The new law does not apply to temporary help firms seeking applicants to join their pool of available workers. Temporary help firms are businesses that recruit, hire, and assign their own employees to perform work or services for other organizations, to support or supplement the other organization’s workforce, or to provide assistance in special work situations. However, employers who work with temporary help firms must follow the new salary transparency law.
Fringe Benefits
The law only applies to salary, which is the base pay or rate of pay. Accordingly, fringe benefits are not required to be included in any postings. The NYC Commission on Human Rights advised that fringe benefits that do not have to be included in job postings include, but are not limited to:
- 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 or contributions towards retirement or savings funds, such as 401(k) plans or employer funded pension plans
- Severance pay
- Overtime pay
- Other forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging
Enforcement
The NYC Commission on Human Rights accepts and investigates complaints of discrimination filed by members of the public. The Law Enforcement Bureau also initiates its own investigations based on testing, tips, and other sources of information. Employers and employment agencies who are found to have violated the NYCHRL may have to pay monetary damages to affected employees and civil penalties of up to $250,000. However, for the first offense, employers will be provided with an opportunity to amend ant non-compliance advertisements.
Steps Employers Should Take Now
Employers in NYC or with job postings in NYC should start reviewing their pay practices and job postings now to ensure compliance on November 1st. Employers are encouraged to have systems in place to review all advertisements and update job posting templates to include a salary range. Also, employers should ensure that they create and maintain records outlining the good faith salary range that an employer intends to pay for any positions in NYC.
Employers with questions about NYC Salary Transparency Law, or any other concerns should contact the attorneys in Forchelli Deegan Terrana LLP’s Labor and Employment Department.