On March 3, 2023, New York Governor Kathy Hochul signed into law A999 / S1326 (the "Amended Law"), which includes amendments to New York State's pay transparency law ("Law") that both broaden and lessen obligations on employers. Specifically, the Amended Law modifies the scope of covered jobs, eliminates the recordkeeping requirement, and clarifies the definition of "advertise." What remains unchanged, however, is the September 17, 2023, effective date and the requirement to include the job description in an advertisement, if one exists. Crowell & Moring LLP ("Crowell") previously reported on the originally-enacted Law, which can be found here.
What Has Changed Under the Amended Law?
Scope of Coverage
Under the original Law, employers would have been required to include compensation or compensation ranges and job descriptions in all advertisements for any jobs that "can or will be performed in the state of New York." This provision was interpreted to cover all positions that are fully remote.
The Amended Law now only covers advertisements for jobs, promotions, or transfer opportunities that "will physically be performed, at least in part" in New York State, as well as jobs "that will physically be performed outside of New York but report to a supervisor, office, or other work site in New York." Based on the language of the Amended Law, it is still possible for fully remote positions to be covered as long as the position "reports to" one of the listed persons or entities in New York State. In addition, the Amended Law distinguishes the State-level law from the coverage standards of New York City's pay transparency law, which includes positions that can or will be performed, at least in part, in New York City. Crowell previously reported on the City-level law, effective on November 1, 2022, which can be found here.
No Record Retention Obligations
The Amended Law eliminates the requirement for employers to maintain records related to "the history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions." Prudent employers should, however, preserve these records to defend their compensation practices, if challenged.
Definition of "Advertise" Clarified
Finally, the Amended Law now defines "advertise," a term undefined in the original Law. "Advertise" means "to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity."
Employer Takeaway
The New York State Department of Labor will likely issue guidance in the coming months, but employers are advised review to their compensation and posting practices for both internal and external job advertisements, compensation ranges and job descriptions, in order to prepare for the September 17, 2023 effective date.
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