The New York State legislature has passed a wage transparency law (available here), which has been sent to New York's Governor Kathy Hochul for signature. If signed, the NYS law would be effective 270 days later. The NYS law is similar to the New York City (NYC) wage transparency law set to go into effect on November 1, 2022, but with some key differences. DWT has published the following advisories regarding the NYC wage transparency law:
- NYC Council Amends Law Requiring Disclosure of Salary Ranges in Job Postings
- NYC Commission on Human Rights Publishes Guidance on Disclosure of Salary Ranges in Job Postings; City Council Proposes Amendments
- NYC Employers Will Be Required to Post Salary Ranges in Job Advertisements as of April 2022
Comparison of NYS Bill and NYC Wage Transparency Law
The key differences between the NYC wage transparency law and the proposed NYS law are outlined below.
|New York City Law
|Proposed New York State Law
|Employers with four (4) or more employees, or one or more domestic workers.
|Employers with four (4) or more employees.
|Location of Employees
|An employer will be covered by the law if it has at least one employee located in NYC, as explained in guidance issued by the New York City Commission on Human Rights (NYCCHR).
|November 1, 2022.
|If signed by Governor Hochul, the law would be effective 270 days later.
|Required Compensation Disclosures
|Employers must disclose the compensation range from the lowest to the highest amount that the employer "in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity" on all job advertisements for positions located in NYC, as well as the range for all announcements or postings regarding promotion or transfer opportunities.
|Employers must disclose the (i) actual salary, (ii) minimum and maximum starting salary, or (iii) hourly wage that the employer "believes in good faith to be accurate at the time of posting" for any advertised "job, promotion, or transfer opportunity that can or will be performed, at least in part, within the State of New York."
|What Is a "Posting?"
|Any written description of an available job, promotion or transfer opportunity that appears in any medium, including internet advertising, internal bulletin boards, newspapers, and printed flyers distributed at job fairs.
|Do Employers Always Have to Provide Both and Upper and Lower Compensation Rate?
|It depends. If the employer has no flexibility, the rate can be one set amount, such as "$20/hour" or "$50,000/year." The range cannot be open-ended at either end, however, as the guidance states that "'$15 per hour and up' or 'maximum $50,000 per year' would not be consistent with the new requirements."
|The law states that employers must disclose "the compensation or range of compensation" in a job posting.
|Does the Posting Have to Include a Job Description?
|Yes, if one already exists. The proposed NYS law would not require employers to create new job descriptions.
|Does the Range Have to Include All Types of Compensation?
|No. The range must provide the base wage or rate of pay but need not include items such as overtime, vacation, medical insurance or other benefits or "other forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging."
|When a position is paid "solely on commission," the posting must include a "general statement that compensation shall be based on commission." The bill does not address whether overtime, benefits or other types of compensation must be included.
|Must All Jobs Be Posted?
|No. The law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.
|Application to Remote Positions
|Yes. The NYC law, as amended, 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."
|The proposed NYS law would likely apply to job postings related to fully remote positions that could be performed by an individual in New York State as the posting requirement applies to any position "that can or will be performed, at least in part, within the State of New York."
|Employers have a record-keeping obligation with regard to "the history of compensation ranges for each job, promotion or transfer opportunity and the job descriptions for such positions, if such descriptions exist."
|Who Can Bring Claims?
|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.
|The bill states that "any person claiming to be aggrieved by a violation" of the law can file a complaint. This means that applicants may be able to file a complaint, but the issue may be addressed in future amendments, regulations or guidelines issued by the New York State Department of Labor.
|Forum for Complaints
|Individuals can file a complaint with the New York City Commission on Human Rights.
|Individuals can file a complaint with the New York State Department of Labor.
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."
|Civil penalties in an amount up to one thousand dollars for a first violation, two thousand dollars for a second violation and three thousand dollars for a third or subsequent violation.
If the proposed law is signed, employers in New York City will have to comply with both the NYC and NYS laws. The proposed NYS law explicitly states that it will not supersede or preempt any provisions of local laws. Thus, to the extent that the NYC law imposes stricter requirements on employers, the NYC requirements would apply.
Employers in New York State can begin to prepare by reviewing their current compensation ranges to assess whether to make any changes to attract new candidates or retain current employees.
Employers should also determine whether they have existing job descriptions, and consider whether any changes should be made to those descriptions, which would have to be included in advertisements under the proposed law.
If Governor Hochul signs the bill into law, the New York State Department of Labor may publish additional guidance. We will continue to monitor for further developments and will provide new information when it becomes available.