Must My Business In The New York List The Maximum And Minimum Salary For A Job In Any Advertisement Or Posting About The Job?

This article will address:

• The recently enacted New York City pay transparency law

• What businesses are covered by the New York City pay transparency law 

• What information about salaries must be stated in job advertisements

• Remedies for aggrieved employees, civil penalties against employers for violations, and how employers may ensure that they comply with the New York City pay transparency law.

Yes. Effective November 1. 2022, the New York City Human Rights Law (the “City Human Rights Law” or the “NYCHRL”) renders it an unlawful discriminatory practice for an employer, an employment agency, or an employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum annual salary or hourly wage for the position in the advertisement. In stating the minimum and maximum annual salary or hourly wage for a position, the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.

Of course, this pay transparency law applies to jobs performed in person.

In addition, the pay transparency law applies to remote (that is, work-from-home) positions that could be performed by a resident of New York City, even if, in fact, the remote employee resides outside of New York City.

An employee may bring and prosecute, in court, a lawsuit against his or her current employer for an alleged violation of this pay transparency law relating to an advertisement by the employer for a job, promotion or transfer opportunity with that employer. 

In addition, the New York City Commission on Human Rights (the “City Commission on Human Rights” or the “NYCCHR”) may impose civil penalties on employers which violate the New York City pay transparency law.

To What Businesses Does The New York City Pay Transparency Law Apply?

The law applies to all employers which employ or retain four or more workers (including employees, independent contractors, or a combination of both), provided that at least one of these workers works in New York City.

For the New York City pay transparency law to apply, the employer’s four workers 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 employer’s workers works in New York City, the workplace is covered.

The pay transparency law applies to employment agencies regardless of their size.

However, the New York City pay transparency law does not apply to temporary help firms seeking applicants to join their pool of available workers. Temporary help firms are businesses that recruit, hire, and assign their own employees to perform work or services rather organizations, to support or supplement the other organization’s workforce, or to provide assistance in special work situations.

What Are The Consequences For Companies Which Violate The New York City Pay Transparency Law?

An employee who wins a lawsuit against his or her current employer for a violation of this pay transparency law relating to an advertisement by the employer for a job, promotion or transfer opportunity with that employer may recover, from his or her current employer, monetary damages (including both compensatory damages and punitive damages), injunctive relief, and reasonable attorney’s fees, expert fees and other costs.

Where the New York City Commission on Human Rights finds that an employer or an employment agency has violated the New York City pay transparency law, but it is the employer’s first violation of the pay transparency law and the employer proves to the satisfaction of the NYCCHR, within 30 days after the service by the NYCCHR of a copy of a complaint upon the employer, that the violation of the law has been cured, the employer will be subject to a civil penalty of $0 (zero dollars).

The submission of proof of a cure, if accepted by the City Human Rights Commission as proof that the employer’s or employment agency’s violation of the New York City pay transparency law has been cured, will be deemed an admission of liability for all purposes.

For second or subsequent violations of the pay transparency law, or for a first violation of the pay transparency law that the employer does not timely cure, the NYCCHR may impose, upon an employer, a civil penalty of not more than $250,000. 

Apart from payment of civil penalties, employers and employment agencies which are found to have violated the New York City pay transparency law may be required to:

• Amend advertisements and postings
• Create or update policies
• Conduct training
• Provide notices of rights to employees or applicants
• Engage in other forms of affirmative relief

Which Job Listings Are Covered By The New York City Pay Transparency Law?

Any advertisement for a job, promotion, or transfer opportunity that would be performed in New York City is covered by the pay transparency law. An “advertisement” means a description, in writing, of an open job, promotion, or transfer opportunity that is publicized to a pool of prospective applicants.

What Information, About Minimum And Maximum Salaries, Must Be Included In Job Advertisements In New York City?

As noted above, an employer’s advertisement must state the minimum and maximum annual salary or hourly wage for the position. The range must not be open-ended. If an employer has no leeway in the salary it is offering, the minimum and maximum salary may be identical, for example, “$20 per hour.”

Salary encompasses the base annual or hourly wage or rate of pay, irrespective of the frequency of payment.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City metro area, call New York City Employment Attorney David S. Rich at (347) 941-0760.