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Pay Transparency Laws Proliferate in New York

By Thelma Akpan and Maureen Lavery on June 9, 2022

New York State

On June 3, 2022, the New York State Legislature passed Senate Bill 9427, which if enacted would require employers to include a salary range and position description in each job advertisement. The statewide bill is similar in most respects to the pay transparency laws enacted in New York City, Westchester County, and Ithaca earlier this year. All provide that an employer (as well as an employment agency, or an employee or agent of an employer or employment agency) cannot advertise a job, promotion, or transfer opportunity without disclosing the compensation or a range of compensation for the position. Like the local laws, the New York State bill defines "range of compensation" as "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." Unlike the local laws, however, the New York State bill gives employers the option to include a fixed level of compensation as well. Senate Bill 9427 also specifies that where the compensation for a position will be commission-based, an employer must include a general statement that the compensation will be based on a commission instead of a fixed amount or a range.

The New York State bill adds a layer to the disclosure requirement by providing that a job posting must include a description of the position, if a description exists. As drafted, the bill does not define "job description," nor does it require an employer to create a job description for every position it intends to advertise. It does, however, create a record-keeping provision that requires employers to maintain records of the history of compensation ranges for each position, as well as job descriptions for each position, to the extent they exist.

The New York State bill includes an anti-retaliation provision that prohibits an employer from refusing to interview, hire, promote, or employ an applicant or current employee for exercising any of the rights as provided by the law. Violations of the law are subject to investigation and prosecution by the state commissioner of labor, and civil penalties not to exceed $1,000 for the first violation, $2,000 for the second violation, and $3,000 for the third and subsequent violations. The law does not expressly create a private right of action.

Senate Bill 9427 would take effect 270 days after Governor Hochul signs the bill.

Ithaca, New York - Effective September 1, 2022

Though the New York State Legislature has been considering pay transparency legislation since at least early 2021, Ithaca was the first jurisdiction in the state to follow New York City and enact its own law. On May 4, 2022, Ithaca enacted its wage transparency law as an amendment to the city's human rights ordinance. Ithaca's law, which takes effect September 1, 2022, makes it an unlawful discriminatory practice:

  • for an employment agency, employer, employee or agent thereof to advertise an opportunity for employment as an employee, including a job, promotion or transfer opportunity[,] without stating the minimum and maximum hourly or salary compensation for such position in such advertisement. In stating the minimum and maximum hourly or salary compensation for a position, the range may extend from the lowest to the highest hourly or salary compensation the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.

Unlike the New York City and Westchester County laws, both of which provide that a pay range must be disclosed for any position that will be performed, at least in part, within the jurisdiction, Ithaca's law does not provide any guidance as to the geographic or jurisdictional scope of the law.

Westchester County, New York - Effective November 6, 2022

On May 10, 2022, Westchester County became the third jurisdiction in New York to enact legislation requiring that employers provide a pay range in job postings. Westchester County's new law, which takes effect November 6, 2022, amends the Westchester County Human Rights Law by making it unlawful for employers "to advertise a job, promotion, or transfer opportunity without also including the minimum or maximum salary for the job, promotion to transfer in the job posting or advertisement." The Westchester County law is similar to New York City's law, in that it defines a wage range as "the lowest to highest salary the employer in good faith believes at the time of the posting it would pay" for the position. Westchester County has taken the opportunity to clarify some of the ambiguities in the New York City law, in that it specifically defines job posting. Under Westchester County's law, a job posting is "any written or printed communication, whether electronic or hard copy, that the employer is recruiting and accepting applications" for a particular position. The amendment provides a specific carveout for general calls for applications that only indicate that an employer is accepting applications without reference to a particular position, such as a help wanted sign.

Like New York City's law, the Westchester County law applies to a posting for positions that are required to be performed, in whole or in part, in Westchester County, whether in an office, in the field, or remotely. Violations of the law are subject to the remedies and penalties provided in the Westchester Human Rights Law, and include back pay, front pay, punitive damages, costs, and civil penalties up to and including $250,000 for willful violations.

Albany County, New York

In early May 2022, before New York State legislation picked up speed, the Albany County Legislature introduced legislation that would require employers to include a pay range in any job posting. The proposed legislation mirrors the City of Ithaca's pay transparency law in omitting any geographical limitation on the positions that require a pay disclosure. The county legislature is still considering the proposed legislation, and it remains to be seen whether it will move it forward if the New York State bill becomes law.

Jersey City, New Jersey - Effective April 13, 2022

Another ordinance close enough for New York employers to note was enacted on March 24, 2022, when Jersey City, New Jersey passed Ordinance 22-026, with an effective date of April 13, 2022. Like the pay transparency laws in New York, this ordinance requires that employers include a "minimum and maximum salary and/or hourly wage, and benefits" in any job posting or advertisement, and defines a salary range as "the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity." The ordinance also reiterates New Jersey's statewide salary history ban law, which makes it an unlawful practice for a New Jersey employer to inquire about an applicant's salary history or require that the applicant's salary history satisfy any minimum or maximum criteria. Violations of this law may be reported to the city's Office of Code Compliance. There does not appear to be a private right of action.

Employers with operations in New York State should continue to determine and document hourly or salary ranges for each job classification using existing or benchmarking data to determine a good-faith range of pay. New York State employers should also review their existing job descriptions and fine-tune as needed to prepare for the statewide requirement that would mandate their inclusion in job advertisements.

This article was originally published on Littler Mendelson's website. Click here to read the original article.

© 2022 Littler Mendelson. All Rights Reserved. LITTLER MENDELSON®, ASAP®, INSIGHT® and LITTLER REPORT® are registered trademarks of Littler Mendelson, P.C.

Posted: June 21, 2022


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