In a previous Client Alert, we reported that New York State lawmakers approved a bill that would require employers throughout New York State to include salary ranges in all advertised jobs, promotions, and transfers. On December 21, 2022, Governor Hochul signed that legislation into law. It will go into effect September 17, 2023.
Under this new law, “[n]o employer, employment agency, employee, or agent thereof shall advertise a job, promotion, or transfer opportunity that can or will be performed, at least in part, in the State of New York, without disclosing,” among other things, “the compensation or a range of compensation for such job, promotion, or transfer opportunity.”
“Range of compensation” is defined to mean “the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity.”
“Employer” is defined to mean “any person, corporation, limited liability company, association, labor organization or entity employing four or more employees in any occupation, industry, trade, business or service, or any agent thereof,” as well as “any person, corporation, limited liability company, association or entity acting as an employment agent or recruiter, or otherwise connecting applicants with employers,” not including temporary help firms, which are already required to provide compensation ranges under New York State law.
Employers must maintain certain records to comply with this new law. Those records include, but are not necessarily limited to, “the history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions.”
Violations of this new law may be reported to the Commissioner of Labor for investigation under Labor Law § 196-A, and any employer who is found to have violated this new law, or any regulation promulgated thereunder, will be subject to a civil penalty in accordance with Labor Law § 218.
Retaliation is strictly prohibited under this new law: “No employer shall refuse to interview, hire, promote, employ or otherwise retaliate against an applicant or current employee for exercising any rights under this section.”
This new law will not supersede or preempt any local law, rule, or regulation. That includes New York City’s pay transparency law, which went into effect November 1, 2022.
As with New York City’s pay transparency law, how exactly advertising for remote work opportunities will be viewed under this new law is one of a number of potential issues for employers. The potential for increased exposure to discrimination claims is another. Like New York City’s pay transparency law, this new law was designed to address pay discrimination.
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