NYC Amends Pay Transparency Law; Effective November 1, 2022 – Employee Rights/Labour Relations

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On April 28, 2022, by a vote of 43 to 8, the New York City Council approved an amendment to the NYC Job Postings Salary Transparency Act (“the Act”). As noted in our previous alert, the law, which was to take effect on May 15, states that it will be an unlawful discriminatory practice under New York City human rights law to post a job offer. job that does not include the minimum and maximum wage. offered for the position. After much reaction from the business community, New York City Council voted in favor of an amended bill (the “Amendment”) which, if signed into law by Mayor Eric Adams, would amend the date of entry into force of the law from May 15 to November 1. 2022, giving business owners more time to comply.

The amendment clarifies that advertisements for any job, promotion or transfer opportunity will have to include a statement of either a minimum and maximum annual salary or a minimum and maximum hourly salary and will apply to advertisements aimed at both exempt employees who earn a salary, not – exempt employees, who can be paid by salary or by the hour. The amendment also clarifies that the requirement will not apply to positions that “cannot or will not be filled, at least in part,” in New York City. The City Council clarified that fully remote positions that could potentially be filled by a New York resident are not exempt from the pay transparency requirement. A copy of the City Council press release regarding the amendment is available here: Council votes to clarify and improve pay transparency law – Press (nyc.gov).

A notable change brought about by the amendment is that a person would not be able to sue an employer based on this law unless that person is a current employee who is suing his employer for advertising a job, promotion or transfer without posting a minimum and maximum hourly wage or annual salary. Thus, job applicants who are not current employees could not sue for infringement; rather, they would be limited to filing complaints with the New York City Commission on Human Rights (the “Commission”). Finally, the amendment clarifies that the penalty for the first violation of this law would be $0 provided employers remedy the violation within 30 days to the satisfaction of the Commission, although such relief would constitute an admission of responsibility.

Summary and takeaways for businesses:

  • The law applies to all employers with four or more employees.

  • If the law is enacted, it will be an illegal discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum annual salary and maximum or hourly wage for that position in this advertisement. .

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

  • Salary includes base salary or rate of pay. Salary does not include other forms of compensation or benefits offered in connection with the advertised employment, promotion or transfer opportunity (that is to say., advertising does not have to include: health insurance, time off, severance, overtime, commissions, tips, bonuses, stocks, 401(K) plans).

  • An advertisement is a written description of an available job, promotion, or transfer opportunity that is broadcast to a group of potential candidates, regardless of medium (that is to say., includes internal bulletin boards, Internet advertisements, printed flyers distributed at job fairs and newspaper advertisements).

  • The law allows employers to remedy a first offense before a fine is imposed by the Commission, although such a remedy would constitute an admission of liability.

  • The law does not apply to positions that cannot or will not be held, at least in part, in New York City.

  • The law applies to job offers for virtual positions – (remote positions are only excluded if no part of the work can be done in the city).

  • The law does NOT apply to a temporary job offer at a temporary help company as defined by labor law.

  • The Commission is the exclusive agency responsible for enforcing the law and assessing fines, but current employees retain the ability to take legal action in relation to job offers from their employers.

  • While the Amendment and a 2 page fact sheet issued in March by the Commission answer some questions about the law, ambiguities remain and the Commission may issue further guidelines and clarifications before the effective date.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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