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

This article will cover:

• The recently enacted New York State pay transparency law

• What employers are subject to the New York State pay transparency law 

• What information about wages must be included in job advertisements

• Remedies for aggrieved employees, monetary fines against businesses for violations, and means by which, by the law’s September 2023 effective date, employers may make sure that they comply with the New York State pay transparency law.

Yes. Effective September 17, 2023, section 194-b of the New York Labor Law (the “State Labor Law” or the “NYLL”) renders it unlawful for an employer, an employment agency, or an employee or agent thereof to advertise a job, promotion or transfer opportunity without stating (i) the minimum and maximum annual salary or hourly wage for the position in the advertisement; and (ii) the job description for the position, if such a job description exists.

In stating the minimum and maximum annual salary or hourly wage for a position, the range of compensation may extend from the lowest to the highest annual salary or hourly wage that the employer in good faith believes, at the time of the posting of the advertisement, the employer would pay for the advertised job, promotion or transfer opportunity. 

With respect to advertisements for jobs, promotions, or transfer opportunities paid solely on commission, employers may comply with the State pay transparency law by disclosing a general statement that compensation will be based on commission. 

On December 21, 2022, New York State Governor Kathy Hochul signed, into law, this pay transparency bill. Further, on March 3, 2023, Governor Hochul signed, into law, amendments to this pay transparency bill.

This pay transparency law applies to jobs, promotions, or transfer opportunities that will physically be performed, at least in part, in New York State.

In addition, the pay transparency law applies to jobs, promotions, or transfer opportunities that will physically be performed outside of New York State but that report to a supervisor, office, or other work site in New York State.

The State pay transparency law does not explicitly authorize an employee to bring or prosecute, in court, a lawsuit against his or her employer for an alleged violation of the pay transparency law relating to an advertisement by the employer for a job, promotion or transfer opportunity with that employer. 

Rather, an aggrieved individual may file, with the New York State Department of Labor (the “State Department of Labor” or the “NYS DOL”), a complaint alleging that an employer, an employment agency, or an employee or agent thereof has violated the State pay transparency law. Once a person files such a complaint, the NYS DOL will conduct an investigation.

If the State Department of Labor finds that an employer, an employment agency, or an employee or agent thereof has violated the State pay transparency law, the NYS DOL will impose a civil penalty on the employer.

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

The State pay transparency law applies to all employers which employ four or more employees. 

The pay transparency law governs employment agencies irrespective of their size.

However, the State pay transparency law does not apply to temporary help firms. Temporary help firms are businesses which recruit and hire their own employees, and assign those employees to perform work at or services for other organizations, to support or complement the other organization’s workforce, or to assist in out-of-the-ordinary work situations such as, but not limited to, employee absences, skill shortages, seasonal workloads, or to perform special assignments or projects. 

What Are The Consequences For Businesses Which Violate The New York State Pay Transparency Law?

Where the State Department of Labor finds that an employer, an employment agency, or an employee or agent thereof has violated the State pay transparency law, the NYS DOL will impose a civil penalty on the employer. The civil penalty shall not exceed:

• $1,000 for the first violation;
• $2,000 for the second violation; 
• $3,000 for the third and subsequent violations.

Apart from payment of civil penalties, the NYS DOL, when it determines that an employer or employment agency has violated the State pay transparency law, will issue, to the employer, an order directing compliance with the law. That order of the State Department of Labor shall describe with particularity the nature of the employer’s violation of the pay transparency law.

What Protections Does The New York State Pay Transparency Law Offer To Employees?

The State pay transparency law includes an anti-retaliation provision that prevents employers from refusing to interview, hire, promote, or employ, or from otherwise retaliating against, an applicant or current employee for exercising any rights conferred by the law.

What is the purpose of the State Pay Transparency Law?

The law aims to decrease pay gaps between men and women, and between whites and minorities, for similar positions by providing greater information to all job candidates to assist them in negotiating, with employers, compensation for new jobs, promotions, and transfer opportunities. Proponents believe that the disclosures required by the State pay transparency law will empower workers by supplying them with critical information; reduce discriminatory wage-setting and hiring practices; and help level the playing field for all workers.

How Should New York State Employers Prepare For The State Pay Transparency Law’s September 17, 2023 Effective Date?

Employers should:

• Inform their human resources and compensation departments, as well as outside employment agencies, of the new requirements.
• Determine and document ranges of compensation for jobs, either by using existing data or by projecting figures on a good faith basis.
• Anticipate requests for salary reviews by current employees. Consider how, either through existing practices or through new practices, to respond to those requests for review.

In Addition To The State Pay Transparency Law, What Pay Transparency Requirements May Apply To Employers In New York State?

Employers which employ or retain four or more workers (including employees, independent contractors, or a combination of both), at least one of which workers works in New York City, not only must comply with the State pay transparency law, but also must comply with the New York City pay transparency law. In a number of respects, the New York City pay transparency law is broader and more punitive than the State pay transparency law. For a detailed explanation of the New York City pay transparency law, see here. 

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.