New Law Requires NY Employers to State Salary Range in Job Ads but Ambiguities Remain

Under a new gender equity law enacted by the New York City Council, effective May 15, 2022, employers with four or more employees will be required to state the minimum and maximum “salaries” for any “advertised job, promotion or transfer opportunity.”

Significant Ambiguities Remain

As guidance has yet to be issued by the New York City Commission on Human Rights (Commission), many important ambiguities remain. While the bill states that the posted salary range may “extend from the lowest to the highest salary the employer in good faith believes at the time of posting it would pay for the advertised job …” (emphasis added), the method of determining the “good faith range” is currently unknown.

Moreover, we still do not know, among other things:

  • whether the new law affects existing job advertisements that were posted prior to the effective date of the legislation and/or requires employers to modify or update job advertisements from time to time;
  • what exactly constitutes an “advertised” job, promotion, or transfer opportunity;
  • how employers should define “salary,” for example, whether or how incentive compensation (like commissions or bonuses) should be included;
  • the geographical or territorial reach of the law, e.g., whether it will apply to employees who will not work, live, or interview physically within the City of New York, but are being hired by NYC-based firms; and
  • whether the compensation range could be supplied by way of a link or reference to another webpage or other resource available to the candidate, rather than appearing in the posting itself.

Application to New York City Staffing Firms

The new bill contains an explicit exemption for temporary employee ads posted by staffing firms. This exemption was included because the New York State Wage Theft Prevention Act (WTPA) already recognizes the unique position of staffing firms in the hiring process – the WTPA allows staffing firms to provide a good faith estimated range of wage rates upon hiring, as opposed to the exact rates mandated for all other industries.

Compliance and Enforcement

Once implemented, this bill will make the failure to provide a salary range in the job ad an unlawful discriminatory practice under the New York City Human Rights Law (NYCHRL). Details regarding penalties for violations have yet to be provided, and some public statements from the Commission suggest that their focus will be bringing employers into compliance through education.

However, because the law is included within the NYCHRL, an aggrieved candidate or employee likely could commence a private lawsuit, or file a charge of discrimination with the Commission, and seek to recover myriad categories of alleged damages, including attorneys’ fees. Moreover, the Commission is generally empowered to assess significant fines for failure to comply with the NYCHRL. Accordingly, employers should take these new compliance obligations seriously.

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We expect that the Commission will issue regulations or other guidance prior to the May 15, 2022, compliance deadline. In the interim, employers should discuss (and plan) internally and with their advisors how best to meet the challenges associated with this bill.

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02.02.2022  |  PUBLICATION: Employment Notes  |  TOPICS: Employment

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