As we reported here, an amendment to the New York City Human Rights Law ("NYCHRL") that requires employers to state the minimum and maximum salary for a position in any job posting was set to go into effect on May 15, 2022 ("Salary Transparency Requirement"). However, the New York City Council recently amended the Salary Transparency Requirement and delayed its effective date until November 1, 2022 ("Recent Amendment").
Although the Salary Transparency Requirement may appear straightforward, employers were initially awaiting guidance from the New York City Commission on Human Rights ("Commission"), a resource to help workers and employers understand their rights and obligations under the NYCHRL. The Commission's guidance was made available in a Fact Sheet which addressed many of the open issues that were troubling employers. We encourage employers to consult the Fact Sheet to understand the scope of their obligations under the law.
That said, the Recent Amendment post-dates the Commission's guidance, limits the scope of the Salary Transparency Requirement, and delays the effective date of the requirement to November 1, 2022.
Given the recent changes and employers' continued interest in the Salary Transparency Requirement, we prepared a quick summary of (1) the original amendment, (2) the Commission's guidance, and (3) the Recent Amendment.
Original Salary Transparency Requirement
To recap, on December 15, 2021, the New York City Council passed Int. 1208-2018 which amends the NYCHRL to make it an unlawful employment practice "to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement."
The law applies to employers that employed four or more people at any point in the prior year (including part-time and temporary employees, interns, and independent contractors) who advertise jobs, promotions, and transfer opportunities, irrespective of whether the positions are advertised internally or externally.
The salary range may extend from the lowest to the highest salary the employer in "good faith" believes at the time of the posting it would pay for the position.
Penalties for violating the NYCHRL include compensatory and punitive damages, fines, and attorney's fees.
The Commission's Guidance on the Salary Transparency Requirement
As noted in our original post, there were a number of open questions regarding the scope of the requirement. The Commission's Fact Sheet fills in many of those gaps. Here is a summary of the most significant pieces of the guidance:
- Definition of Advertisement: "[A] written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants." (Fact Sheet at 1.) The Commission left no doubt that advertisements are covered "regardless of medium" and explicitly mentioned postings on "internal bulletin boards" and "internet advertisements." Employers that post positions on social media are therefore covered by the requirement.
- Geographic Scope: "Covered employers should follow the new 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." (Fact Sheet at 1.) Employers were particularly interested in guidance on the geographic scope of the Salary Transparency Requirement, especially with respect to remote workers. Accordingly, the Commission made clear that the requirement covers remote work so long as the position could be performed, in whole or in part, in New York City. In other words, a position is exempt only if it could not be performed, even in part, in New York City.
- Definition of Salary: "Salary includes the base wage or rate of pay, regardless of the frequency of payment." (Fact Sheet at 2.) As explained in the guidance, employers must include both a minimum and a maximum salary; the range cannot be open ended (e.g., "$15 and up"). But "salary" does not include other forms of compensation or benefits offered in connection with the advertised position, including health insurance, 401K contributions, and overtime pay. (Fact Sheet at 2.)
- Covered Employers: "All employers that have four or more employees or one or more domestic workers." (Fact Sheet at 1.) The addition of employers with "one or more domestic workers" is consistent with the scope of the NYCHRL, but that language was not included in the original text of law.
As noted, the New York City Council amended the Salary Transparency Requirement on April 28, 2022. The Recent Amendment delayed the effective date of the law until November 1, 2022, and made a few substantive changes.
- Limit on Private Right of Action: The Recent Amendment limits the private right of action against employers for alleged violations of the law to current employees. Prospective employees (e.g., job applicants) do not have a private right of action against employers who fail to comply with the requirement.
- Opportunity to Cure First Time Violations: The Recent Amendment provides an employer with 30 days from receipt of an initial complaint of non-compliance to cure the employer's first violation of the law. An employer that successfully cures the violation within 30 days will be subject to a civil penalty of $0 for that initial violation.
- Geographic Scope: The Recent Amendment expressly states that positions that cannot or will not be performed, at least in part, in New York City are exempt from the requirement.
- Salary or Wage Information: The Recent Amendment clarifies that an employer can provide the range for either an "annual salary" or an "hourly wage" to satisfy the requirement.
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