Q: I heard that New York City recently amended the salary transparency law. What are the key aspects of the amendment and when does it go into effect?
A: As discussed in our previous post, an upcoming law requires New York City employers to include salary bands in job advertisements or postings. Employers must include the minimum and maximum salary or hourly rate for the position, and the requirement applies to both internal and external postings.
On April 28, the New York City Council voted to make key amendments to the upcoming salary transparency law. The most important changes include:
- Delaying the effective date to November 1 (the original date was May 15);
- Excluding positions that “cannot or will not be performed, at least in part” in New York City; and
- Providing that only current employees can bring a cause of action against their current employers regarding an advertisement for a job, promotion, or transfer opportunity (so third-party applicants cannot bring a claim).
The amendments left open the question of whether the law applies to remote positions that can be, but are not required to be, performed in New York City. However, based on City Council member comments made during discussion of the amendment, the law is intended to apply to such positions.
The New York City Commission on Human Rights also released guidance on the new law, which addressed many outstanding questions, including:
- Employers Covered: The law covers employers with four or more employees. Employees are counted regardless of geographic location. For example, if one employee works in New York City and three employees work elsewhere, the employer is covered for purposes of the salary transparency law. A previous version of the amendment excluded employers with less than 15 employees, but that provision was not included in the final amendment.
- Types of Postings Covered: The law applies to all “written descriptions of an available job, promotion, or transfer opportunity publicized to a pool of potential applicants.” It applies to both internal and external opportunities, regardless of the posting medium (internal intranets, newspaper advertisements, online postings, etc.). It also applies to numerous types of worker relationships, including internships and independent contractors.
- Information Provided: The posting must include the minimum and maximum salary or hourly rate that employers believe in good faith they are willing to pay for the advertised position. The range cannot be open ended (for example, “$15/hour and up) — it must include both a minimum and maximum. If the employer has no flexibility, the minimum and maximum may be the same (for example, “$20 per hour). Salary includes the base wage or rate of pay, but does not include other forms of compensation or benefits, such as paid time off, commission, and bonuses.
- Penalties: Employers found in violation of the new law may be required to amend advertisements and postings (as well as other forms of affirmative relief), and they may be required to pay monetary damages to affected employees and civil penalties of up to $250,000. However, a first violation does not have a monetary penalty so long as the employer can show that, within 30 days of receiving the complaint, the employer cured the violation.
Employers should take advantage of the delayed effective date to ensure their compliance. If you would like assistance navigating the new law, please reach out to any member of the Troutman Pepper Labor + Employment team.