Compliance Update

The New York City Commission on Human Rights (NYCCHR) has released additional guidance on its pay transparency law, which was scheduled to take effect on May 15, 2022, but is now delayed to November 1, 2022.

Update May 2022:

The New York City Council approved Introduction 134-A, which delays the new pay transparency law from May 15, 2022 to November 1, 2022, and:

• Clarifies that the law applies to advertised roles paid either by an annual salary or an hourly wage;
• Confirms that the law does not apply to positions that cannot or will not be performed at least partly in New York City;
• Limits private lawsuits to those brought by current employees against their employers for using a non-compliant advertisement for a job, promotion, or transfer opportunity; and
• Protects an employer (or employment agency) from monetary penalties for an initial violation of the law if they provide written or electronic proof that the violation was fixed within 30 days.

The Details:

The NYCCHR had clarified several aspects of its pay transparency law.

Covered Employers:

The law covers employment agencies, employers with four or more employees (which counts owners and individual employers), and employers with one or more domestic workers. The workplace is covered if at least one of the four employees works in New York City. The law also applies to employers that work with temporary help firms, but it excludes temporary help firms that hire employees to perform work for other businesses.

Covered Job Listings:

The law covers any advertisement for an available job, promotion or transfer opportunity performed at least in part in New York City. An “advertisement” is defined as a written description, regardless of the medium, publicized to a pool of potential applicants. This includes a posting on an internal bulletin board, internet advertisement, printed flyer at a job fair, and newspaper advertisement.

The law applies to advertisements for independent contractors, full-time and part-time employees, interns, domestic workers, and any other category of worker protected by the NYC Human Rights Law.

Note: Employers may hire without using an advertisement and are not required to create an advertisement to hire.

Salary Range Requirements:

Employers must include the minimum and maximum salary that they in good faith are willing to pay for an advertised job, promotion or transfer. This means the salary range they honestly believe at the time of the posting that they are willing to pay the successful applicant(s). Job ads that cover multiple opportunities can include salary ranges specific to each opportunity.

The guidance specifies that the range must include the base wage or rate of pay, regardless of the frequency of payment. For example, employers may list a dollar amount per hour or a dollar amount per year. However, the range cannot be open-ended, such as $15 per hour and up or a maximum of $50,000 per year. However, if there is no flexibility in salary, the minimum and maximum salary may be the same.

Employers may also include, but are not required to disclose, other forms of compensation and benefits such as:

• Health, life, or other employer-provided insurance;
• Time off work, such as paid sick or vacation days, leaves of absence, or sabbaticals;
• Retirement benefits, such as 401(k)s or employer-funded pension plans; or
• Severance, overtime pay, commissions, tips, bonuses, stock, the value of employer-provided meals or lodging, or other perks in pay.

Enforcement:

Covered employers that are found to have violated the law may face penalties of up to $250,000. They may also be required, among other things, to amend their job ads and postings, create or update policies, conduct training, and provide notices of rights to employees or applicants.

Next Steps:

New York City employers should:

• Review their job advertisements
• Train supervisors to help ensure compliance with the law
• Take note of the delayed effective date of November 1, 2022