Last week, New York City employers received more clarification on New York City’s new salary disclosure law (Local Law 32 for 2022, the “Salary Disclosure Law,” which we previously blogged about here). The New York City Commission on Human Rights (NYCCHR) released a Fact Sheet providing more details on employers’ obligations under the Salary Disclosure Law, which requires NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York City beginning May 15, 2022.
The Fact Sheet answers questions including:
Does this new law apply to my job postings?
The Fact Sheet clarifies that
- The four employees (or one or more domestic workers) that make the workplace covered under the law do not need to work in the same location, and do not need to all work in NYC. As long as one of the employees works in NYC, the workplace is covered.
- Employment agencies are also covered by the new law, regardless of their size.
- The new law does not apply to temporary help firms seeking applicants to join their pool of available workers–but employers who work with temporary help firms must follow the new law.
Which job listings are covered by the new law?
Any advertisement for a job, promotion, or transfer opportunity that would be performed in New York City is covered by the new law. Notably, “advertisement” is defined as a written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants (regardless of the medium of dissemination). Further, the new law does not require employers to use advertisements when hiring. However, if the employer chooses to advertise, it must comply with the disclosure requirements.
Covered employers must follow the new law when advertising for positions that can or will be performed, in whole or in part, in NYC–whether from an office, in the field, or remotely from the employee’s home.
What information must be included in covered job advertisements?
Employers must state both the minimum and maximum salary they in good faith believe (i.e. honestly believe) at the time of the posting they are willing to pay for the advertised job, promotion, or transfer opportunity.
- The salary range cannot be open ended.
- If an employer has no flexibility in the salary they are offering, the minimum and maximum salary may be identical–for example, both the minimum and maximum salary can be “$20 per hour.”
“Salary” includes the base wage or rate of pay, regardless of the frequency of payment–meaning it could include an hourly wage of $15 per hour or an annual salary of $50,000 per year. But, salary does not include other forms of compensation or benefits offered in connection with the advertised job, promotion, or transfer opportunity, such as employer-provided health insurance, paid or unpaid time off work, the availability of contributions towards retirement or savings funds (such as 401(k) plans or employer funded pension plans, overtime pay, commissions, tips, or bonuses).
Employers can, but aren’t required to, include additional information in advertisements about benefits and other forms of compensation offered in connection with the job, promotion, or transfer opportunity.
How will salary transparency protections be enforced?
The Fact Sheet states the Commission on Human Rights accepts and investigates complaints of discrimination filed by members of the public. In addition, the Law Enforcement Bureau also initiates its own investigations based on testing, tips, and other sources of information.
Employers and employment agencies who are found to have violated the New York City Human Rights Law (NYCHRL)–including the Salary Disclosure Law–may have to pay monetary damages to affected employees and civil penalties of up to $250,000. Additionally, covered entities may be required to amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief.
The pending bill to amend the Salary Disclosure Law
Though employers are ramping up to comply with the law’s May 15, 2022 effective date, on March 24, 2022, a bill was introduced to amend the Salary Disclosure Law to push the effective date of the law back to November 1, 2022, and to:
- Exclude employers with fewer than 15 employees from coverage (as opposed to the law’s current threshold of four employees).
- Clarify that the law applies to employees paid hourly or through a salary.
- Clarify that the law does not apply to general notices that an employer is hiring without reference to any particular position, or to positions that are not required to be performed (at least in part) in New York City.
As of March 31, 2022, the bill to amend the Salary Disclosure Law was before the Committee on Civil and Human Rights. Stay tuned on the status of the pending amendment, and for this and all of your employment needs, contact your Baker McKenzie employment attorney.