The New York City Commission on Human Rights (NYCCHR) has released a fact sheet providing additional details and guidance regarding the upcoming salary disclosure law.
As we previously reported, the new law will make this an unlawful discriminatory practice under the New York City Human Rights Law (NYCHRL) for a covered employer or its agent, or for an agency placement, posting an offer of employment, promotion or transfer without stating a “good faith” minimum and maximum salary for the position in question.
As enacted, the law will come into force on May 15, 2022 and will apply to employers with four or more employees. However, as we recently reported, a bill has just been introduced before the New York City Council that would, among other things, push back the law’s effective date to November 1, 2022 and exclude employers less than 15 employees (as opposed to the current threshold of four employees) for coverage.
Here are some highlights of the new guidelines issued by NYCCHR, which are written in accordance with the current version of the law:
The law applies to employers with four or more employees, regardless of location, as long as at least one employee works in New York. Employment agencies are covered by the law, regardless of their size.
Temporary work companies that are looking for candidates to join their pool of available workers are not covered by the law. However, NYC employers who work with temporary help companies are covered by the law and must follow it.
The guidelines define an “advertisement” as a written description of an available job, promotion or transfer opportunity that is posted to a group of potential candidates, regardless of the medium in which it is posted. . This includes postings on internal bulletin boards, Internet advertisements, printed flyers distributed at job fairs and newspaper advertisements. However, the guidelines clarify that the law does not prohibit employers from hiring without using an ad, nor does it require employers to create an ad to hire.
The law covers any advertising for employment, promotion, or transfer opportunity that “can or will be conducted, in whole or in part, in New York City, whether from an office, in the field, or remotely from the home of the employee”.
Ads are covered by law “whether they are looking for full or part-time employees, interns, domestic workers, independent contractors, or any other class of workers protected by NYCHRL.”
Set a bona fide pay scale
As noted above, the law prohibits a Covered Entity from posting an offer of employment, promotion, or transfer without stating a “good faith” minimum and maximum salary for the position in question. The guidelines define “good faith” as “the salary range that the employer honestly believes at the time of posting the job advertisement that it is willing to pay to the successful candidate(s) “.
Employers must include both a minimum wage and a maximum wage and the range cannot be unlimited. For example, “$15 per hour and up” or “maximum of $50,000 per year” do not comply with legal requirements.
If an employer has no flexibility in the wage they offer, the minimum and maximum wage may be the same (eg, “$20 per hour”).
Definition of “salary”
The guidelines provide that “wage” under the law includes base pay or rate of pay, regardless of the frequency of payment (for example, it would include an hourly wage of $15 per hour or a annual fee of $50,000 per year).
However, in a welcome clarification for employers, the guidelines state that “salary” does not do not include other forms of compensation or benefits offered in connection with the position, such as:
- health, life or other insurance provided by the employer;
- paid or unpaid leave, such as paid sick or vacation days, statutory holidays or sabbaticals;
- availability of or contributions to retirement or savings funds, such as 401(k) plans or employer-sponsored retirement plans;
- severance pay;
- payment of overtime; or
- other forms of compensation, such as commissions, tips, bonuses, stock, or the value of meals or lodging provided by the employer.
Enforcement and Penalties
The guidelines provide that NYCCHR will accept and investigate complaints of violations of the law filed by members of the public, and states that its law enforcement office may also initiate its own investigations based on testing, advice and other sources of information.
Covered entities that violate the law may be liable for monetary damages to affected employees, as well as civil penalties of up to $250,000. Covered Entities may also be required to modify advertisements and displays, create or update policies, conduct training, provide rights notices to employees or applicants, and engage in other forms of positive measures.
New York Commission on Human Rights issues guidance on salary disclosure law
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.