As we previously notified our readers, a significant change is here for job posting in New York City.
As of November 1, 2022, employers advertising a “job, promotion or transfer opportunity” in the 5 Boroughs of New York City must state the minimum and maximum salary for the position contained in the job posting or advertisement. This law applies to all jobs that will be or can be performed, at least in part, in New York City.
The law applies to all employers that have four or more employees (including owners) or one or more domestic worker. The four employees do not need to work in the same location, and they do not need to all work in New York City, as long as one works in New York City.
The new law applies to companies employing independent contractors and family members working for the employer. The law however does not apply to those placed for temporary work by “temporary help firms” as defined by NY Labor Law § 916(5)(2015). These firms include staffing firms which hire employees and then assign them temporary jobs to perform work elsewhere.
The new law also requires that employers demonstrate a “good faith belief” when defining the salary range, from lowest to highest, based on knowledge at the time of posting. An “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 in which it is disseminated.
The New York City Commission on Human Rights’ (“NYCCHR”) definition of salary under this law includes the base annual or hourly wage or rate of pay, regardless of the frequency of payment. For example, it would include an hourly wage of $15 per hour or an annual salary of $50,000 per year.
Salary does not include other forms of compensation or benefits offered in connection with the advertised job, promotion, or transfer opportunity, such as:
- Health, life, or other employer-provided insurance;
- Paid or unpaid time off work, such as paid sick or vacation days, leaves of absence, or sabbaticals;
- The availability of or contributions towards retirement or savings funds, such as 401(k) plans or employer-funded pension plans;
- Severance pay;
- Overtime pay;
- Other forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging.
Employers must include both a minimum and a maximum salary. This range cannot be open ended. For example, “$15 per hour and up” or “maximum $50,000 per year” would not be consistent with the new requirements, according to the NYCCHR. If an employer has no flexibility in the salary they are offering, the minimum and maximum salary may be identical, for example, “$20 per hour.”
FINES & PENALTIES FOR NON-COMPLIANCE
The law also amends the New York City Human Rights Law (NYCHRL) which prohibits discrimination in employment and now makes the failure to include minimum and maximum salary in a job advertisement an “unlawful discriminatory practice.” Job postings without salary range information can be reported to the NYCCHR. The NYCCHR will not assess a civil penalty for a first complaint alleging a violation of the salary transparency provision, as long as the employer shows they have fixed the violation within 30 days of receiving the Commission’s notice of their violation. However, an uncured first violation, and subsequent violations, may result in penalties of up to $250,000 may result in penalties of up to $250,000.
In addition, individuals who bring suit alleging violations of the NYCHRL may also recover damages, including, but not limited to, back pay, front pay, compensatory damages, punitive damages, attorney's fees and costs.
Employers must ensure that they are in compliance with this new law immediately. Employers should review their pay scales and revise their job posting policies to ensure compliance. In addition, employers should document their “good faith” discussions when setting pay ranges so they can defend against claims for violations of the new law.
For more information regarding compliance with this new law and for assistance in preparing Job Postings and updated Job Descriptions, please contact Dina M. Mastellone, Esq., Leader of the Genova Burns’ Human Resources, Counseling & Compliance Practice, via email here or call 973.533.0777.
Tags: Genova Burns LLC • Avi R. Jerushalmy • Human Resources Counseling & Compliance • New York City Human Rights Law • Salary Transparency • New York City • Independent contractor • Labor Law • Compliance