On April 28, 2022, the New York City Council amended the city's salary transparency law to delay its effective date from May 15, 2022 to November 1, 2022. As discussed in our previous advisories, the law amends the New York City Human Rights Law (NYCHRL) to require that employers disclose a compensation range for positions in all job postings, including postings for promotion or transfer opportunities for current employees.
Although the original law used the term "salary," the amendment, as well as guidance issued in March by the New York City Commission on Human Rights (NYCCHR), states that the posting requirement applies to positions that are paid hourly. The range listed must be what the employer "in good faith believes" it would pay for the position at the time of the posting.
What Else Has Changed?
Application to Remote PositionsThe law will still apply to remote work performed in New York City, as the amendment merely states that the law will not apply to "[p]ositions that cannot or will not be performed, at least in part, in the city of New York." The previously issued NYCCHR guidance states that the law will apply to "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."
This leaves open the possibility that the NYCCHR, the agency that will enforce the law, will determine that positions that are, or might be, filled by an employee working remotely from New York City are covered by the law, even if the employer does not maintain an office in the city and does not require the employee to work there.
Who Can Make a Claim?
Under the amended law, only current employees may bring an action against their employer for advertising a job, promotion, or transfer opportunity without posting a minimum and maximum hourly wage or annual salary. Individuals can file a complaint with the NYCCHR.
No Penalty for First Violation
Under the amended law, there will be no penalty for first violations if the employer corrects the violation within 30 days. However, an employer's submission of proof that the violation was corrected "shall be deemed an admission of liability for all purposes."
For additional violations, companies that fail to comply may have to pay monetary damages to individuals, as well as "civil penalties of up to $250,000."
Items Not Included in the Amendment
The amendment does not include certain provisions that were proposed to the NYC Council on April 5, 2022. For example, the law will apply to all employers covered by the NYCHRL, with no exception for small employers. All employers that have four or more employees (or one or more domestic workers) are covered by the NYCHRL, but not all four employees have to be located in New York City.
According to guidance issued by the NYCCHR, this means that the law will apply to any company with at least one employee in New York City, as the guidance states: "owners and individual employers count towards the four employees. The four employees do not need to work in the same location, and they do not need to all work in New York City. As long as one of the employees works in New York City, the workplace is covered."
The amendment approved by the NYC Council does not allow employers to avoid the salary range provision by posting a general notice that it is hiring, without reference to any particular position.
Employers now have more time to determine which job, transfer, and promotion postings must include a minimum and maximum level of compensation. Employers also have more time to decide whether to change their company's current compensation structure before the information must be made public in job postings.
The NYCCHR may publish additional guidance. We will continue to monitor for further developments and will provide new information when it becomes available.