New York Passes Statewide Pay Transparency Law and New Electronic Workplace Posting Requirements
Earlier this month, New York Governor Kathy Hochul signed into law new requirements for employers regarding pay transparency and electronic workplace posting requirements. While employers have until September 17, 2023 to comply with the statewide pay transparency law, the workplace posting requirements are effective immediately.
Statewide Pay Transparency Law
On December 21, 2022, Governor Hochul signed legislation (S.9427A/A.10477) that requires employers to disclose salary ranges in job postings. Specifically, the law adds a new Section 194-b to the New York Labor Law and requires employers with four or more employees to include the following information when advertising a covered job, promotion, or transfer opportunity: (1) the “compensation or range of compensation for such job, promotion, or transfer opportunity” and (2) the “job description for such job, promotion, or transfer opportunity, if such description exists.” These disclosure requirements also apply to employment agencies (including their agents and employees), but do not apply to “temporary help firms.”
The law defines the “range of compensation” as the minimum and maximum annual salary or hourly range of compensation for the job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the advertisement posting. That being said, the law creates a carveout for roles that are paid solely on a commission basis by providing that employers need only disclose “in writing a general statement that compensation shall be based on commission” to comply with the law.
As noted above, the law applies to employers with four (4) or more employees, but the law does not explicitly state whether only New York-based employees count toward that threshold. Further, the aforementioned disclosure requirements apply to jobs that can or will be performed, at least in part, in New York State. Therefore, until further guidance is issued, the law has implications for employers both within and outside of New York State.
In addition to the above, the law requires employers to keep and maintain certain records including, but not limited to, the history of compensation ranges for each job, promotion, or transfer opportunity and the job description for such positions, if such descriptions exist. The law also contains an explicit non-retaliation provision.
While the law does not create a private right of action, it instead provides that any aggrieved person may file a complaint with the New York State Department of Labor (“NYDOL”). The NYDOL may issue civil penalties of up to $1,000 for a first violation, $2,000 for a second violation, and $3,000 for a third or subsequent violation.
Significantly, the law provides that additional guidance from the NYDOL will be forthcoming and directs the NYDOL to conduct a public awareness outreach campaign, which will include making information available to employers regarding the new obligations.
This law is another example of yet another jurisdiction enacting pay transparency laws. As we reported earlier this year, New York City and Westchester County have both enacted pay transparency laws. The New York State law explicitly states that it shall not supersede or preempt any local laws, therefore, employers should ensure compliance with all applicable pay transparency requirements. Notably, the Westchester County law will become null and void when the State law becomes effective.
Electronic Workplace Postings
On December 16, 2022, Governor Hochul signed an amendment (S.6805/A.7595) of Section 201 of the New York Labor Law into law. Specifically, employers are now required to electronically make available all required workplace postings under federal, state, and local law (regardless of whether any employees ask for electronic copies of such postings). The law states that these digital versions can be made available through the employer’s website or by email. Further, employers are also required to provide notice that documents required for physical posting are also available electronically.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.
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