New York, N.Y. (February 15, 2022) - Effective May 15, 2022, New York City has amended the New York City Human Rights Law (NYCHRL) to make it “an unlawful discriminatory practice for an employment agency, employer, employee, or agent thereof to advertise a job, promotion, or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement.” The proposed salary range must “extend from the lowest to the highest salary" the employer believes "in good faith" that it would pay “at the time of the posting.”
The ordinance applies to employers with four or more employees. It is important to note that independent contractors working “in furtherance of an employer's business enterprise” must be counted as employees. It remains to be seen how this somewhat vague definition will be applied in practice.
The ordinance does not apply to job postings for temporary employment in temporary staffing firms. Although the text of the amendment itself does not mention what the penalties for non-compliance will be and whether there is a private right of action, by making the withholding of salary information an “unlawful discriminatory practice” under Section 8-107 of the NYCHRL, the New York City Council has effectively created a private right of action for aggrieved prospective hires as well as candidates for promotion or transfer. Penalties for violating the NYCHRL include compensatory damages, punitive damages, attorneys' fees, and civil fines. The NYCHRL also provides for civil penalties as high as $125,000 for those who engage in unlawful discriminatory practices, and as high as $250,000 for those who do so willfully, wantonly, or maliciously.
Several questions remain unanswered that will hopefully be addressed by FAQs to be issued by the NYC Commission on Human Rights, which is tasked with enforcing the law. Those questions include:
- What is the definition of “salary,” and does it include wages paid to hourly employees, commissions, or discretionary bonuses?
- What are the implications for job postings for tipped positions?
- Do employees working remotely for a New York City employer have recourse under the new law?
- How broad is the definition of independent contractors “working in furtherance of an employer's business enterprise” and will the definition, for all practical purposes, render nearly all positions covered?
- What is the impact of the employer ultimately offering a salary that falls outside the range advertised?
To ensure compliance, employers operating in New York City with four or more employees or independent contractors should review their job postings and revise them, where necessary, to state anticipated wage ranges for all positions advertised (whether externally or internally) by May 15, 2022. It is best practice to memorialize how the minimum and maximum wage ranges are set. Offers should be made within the advertised range when possible. It may also be necessary to train personnel involved in the hiring process about these new requirements.
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