By Paul F. Millus and Daniel B. Rinaldi
In a previous Client Alert, we reported that Governor Hochul signed into law legislation that will require employers throughout New York State to include salary ranges in all advertised jobs, promotions, and transfers. That law, which was subsequently amended, went into effect September 17, 2023.
Under the 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.”
Due to an amendment designed to address remote work, the new law will also apply to any “job, promotion, or transfer opportunity that will physically be performed outside of New York but reports to a supervisor, office, or other work site in New York.”
“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 broadly to include “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 (emphasis added).
“Advertise,” too, is defined broadly. It means to “make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.”
Due to another amendment, which was designed to address what was perceived to be an burdensome record-keeping requirement, the new law no longer mandates that employers maintain certain records, such as “the history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions.” Although it will no longer be necessary for employers to do so, it would be wise for employers to maintain these records regardless, as they may aid in the defense of a claim.
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.”
Proposed regulations for the new law were published in the State Register on September 13, 2023. The public has sixty (60) days to review and comment on them.
The 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, the potential for increased exposure to discrimination claims is one of a number of possible issues for employers. Like New York City’s pay Transparency law, the new law was designed to address pay disparities. And because of the continued prevalence of remote work, how broadly, or narrowly, the phrase “reports to a supervisor, office, or other work site in New York” will be interpreted is another possible issue for employers.
The Employment Law practice at Meyer, Suozzi, English & Klein, P.C. deals with internal investigations, employment contracts, severance agreements, employee benefits, employee handbooks, leaves of absence, privacy issues, wrongful discharge, discrimination claims and sexual harassment claims, restrictive covenants, disability matters and breaches of contract. Our attorneys litigate, mediate and arbitrate employment-related claims in Federal, State and administrative forums.