Seyfarth Synopsis: New York City has become the
latest jurisdiction to impose greater pay transparency
requirements. Effective on May 15, 2022, all advertisements for
jobs, promotions or transfer opportunities must include the minimum
and maximum salary for the position.
Last month, the New York City Council passed Int. No. 1208-2018-B. Former Mayor Bill de Blasio and current Mayor Eric Adams both took no action within the allotted 30 day period which means the bill became law on January 15, 2022. Employers must comply with the new law by May 15, 2022 (120 days after its effective date).
Salary Range Disclosure Requirement
The NYC law will make it an unlawful discriminatory practice for an employer, employment agency or employee to advertise a job, promotion or transfer opportunity without including the minimum and maximum salary for such position in the advertisement. The salary range may extend from the lowest to highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.
Following the standard definition of "employer" in the New York City Human Rights Law ("NYCHRL"), the law applies to NYC employers with four or more employees. Counted in the four-employee threshold are (1) independent contractors, and (2) the employer's parent, spouse, domestic partner, or child, if employed by the employer.
The law does not apply to job advertisements for temporary employment at a "temporary help firm" (e.g., temporary agency), as such firms are already required to provide wage range information in compliance with the New York State Wage Theft Prevention Act.
With respect to promotion or transfer opportunities, the law appears to only require an employer to include a salary range when it decides to advertise for such opportunities. There does not appear to be an affirmative obligation on employers to provide notice of promotional opportunities to their NYC employees.
The New York City Commission on Human Rights ("NYCCHR") is expected to issue guidance and trainings on the new law. We are hopeful that these additional resources will provide much needed clarity on the new pay transparency requirements.
Potential Penalties and Damages
A violation of the law would be treated similar to a discrimination claim under the NYCHRL. An individual could either file a complaint with the NYCCHR or directly in court. If a person files in court, the court may award punitive damages, injunctive relief and such other remedies as may be appropriate. For a claim filed with the NYCCHR, the Commission can impose a civil penalty of not more than $125,000 or not more than $250,000 for a willful violation. However, the Commission has indicated that any initial enforcement efforts would likely start with education and other pre-complaint initiatives to cure a violation.
Nationwide Trend of Greater Pay Transparency and Wage Range Disclosure
The NYC law follows a nationwide trend toward greater pay transparency and similar wage range disclosure laws in California, Colorado, Connecticut, Maryland, Nevada, Rhode Island, Washington State, the City of Toledo, and the City of Cincinnati.
The NYC law is similar to Colorado in that it places an obligation on employers to include salary range information in job postings and imposes a "good faith" requirement on the posted salary range.
Employer Takeaways
NYC employers should update their advertisements for jobs, promotions or transfer opportunities to include salary range information. Employers should also consider developing formal pay scales for positions, and training hiring managers, talent acquisition, and human resources employees on such scales.
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