Wednesday, June 22 2022

As we previously reported, New York City is following a growing legislative trend toward pay transparency by requiring employers to disclose salary ranges in relation to advertised vacancies. Recent amendments passed by the New York City Council have delayed the effective date of the Pay Transparency Act from May 15, 2022 to November 1, 2022. Although the postponement gives covered employers leeway maneuver to comply, they should take note of recent developments and be on the lookout for further changes and guidance.

Even if your business has no physical operations in New York, you should not click past this article: Employers at national scale must determine whether job postings for remote positions must comply with this local law.

Brief summary of the law

The New York City Pay Transparency Act amended the New York City Human Rights Law (NYCHRL) to make it illegal for a New York City employer to post a job, promotion or transfer without including the minimum and maximum salary for the position. Covered employers include those with at least four employees or independent contractors if at least one works in New York.

Recent Changes and Directives

In addition to postponing the effective date of the law, the amendments provide that only current employees, not applicants, can sue an employer for an alleged violation. Additionally, Covered Employers are not subject to any monetary penalty for a first violation if the violation is corrected within 30 days. Finally, the amendments clarified that a covered job offer must include information on the minimum and maximum annual salary or hourly wage.

Earlier orientation published by the City provided further clarification on the scope of the law’s requirements. The guidelines provide that compensation and non-salary benefits, such as paid time off, overtime and bonuses, can be omitted from postings. In addition, the law applies to internal job offers as well as opportunities for promotion or transfer. The New York City Commission on Human Rights can investigate complaints of violations, and employers found to have violated the law can be held liable for monetary damages to affected employees and civil penalties that may reach $250,000.

Implications beyond the five boroughs

All employers, not just those in New York, who advertise remote positions should consider whether those job postings must comply with the New York City Pay Transparency Act. City guidelines provide that “[c]Supervised employers must follow the new law when advertising positions that can or will be filled, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home .

As the law is written, a non-New York employer must include a salary range in an advertisement for a remote position, provided the position can be filled by someone working in New York. In contrast, a job posting does not need to include a salary range if the position will be filled outside of New York City, even if the employer is based in New York.

New York City would not be the first jurisdiction to regulate remote job postings. Remember Colorado’s pay equity law, which requires employers to post the pay range and a general description of all benefits in job postings that might be made in Colorado. In response to the law, many employers have excluded Colorado applicants from their remote job postings, which in some cases has attracted unwanted media attention.

Colorado has since took the job that as long as a remote position could theoretically be filled in Colorado, the employer must post compensation and benefits information, notwithstanding the employer’s disclaimer that the job cannot be performed in Colorado. Employers should be on the lookout for future amendments or guidance from New York City on this matter.

Covered employers should use the six-month deadline to ensure they are ready to comply with the law this fall. Foley will continue to monitor new developments as they occur.

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