New York Salary Transparency Laws: Be Aware of These November Changes

Earlier this year we let you know about New York City’s salary transparency law, which takes effect today, November 1, 2022. Starting today, employers must include in any advertisement the minimum and maximum salaries for any job, transfer, or promotional opportunity that can or will be performed in New York City. A similar law takes effect in Westchester County, New York, on Sunday, November 6, 2022. Pay transparency legislation passed in New York State is awaiting Governor Hochul’s signature and will likely take effect next year. Here we answer some of the commonly asked questions we have received about these laws.

• The law applies to (i) any employer with four or more employees, provided one works in New York City and (ii) employment agencies, regardless of size.
• The law does not apply to temporary help firms seeking applicants to join their pool of available workers.

An advertisement is a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants (internally or externally), and may include postings on internal employer sites, bulletin boards, the internet, or flyers at job fairs, to name a few. But employers are not required to use an advertisement during the hiring process.

Include the base annual or hourly wage or rate of pay that your organization believes in good faith it would pay at the time of the posting. The salary range should not include the value of employer-provided insurance, overtime, or other forms of compensation such as bonuses or commissions. If you want to include others forms of compensation in the advertisement, you may—but be sure the posting is clear that such compensation is offered in addition to the base salary suggested by the range.

The salary posting requirements apply to jobs that can or will be performed in New York City—whether the work is performed from an office, in the field or remotely from the employee’s home. Keep in mind that because the New York City Human Rights Law extends to many workers, postings are covered regardless of whether they are seeking part-time or full-time employees, independent contractors, or interns.

• Current employees may file a complaint against their employer for violating the law and seek damages—including punitive damages—and injunctive relief.
• There is no private right of action for applicants who are not current employees.
• However, the New York City Commission on Human Rights may investigate any complaint and assess a civil penalty. The Commission will not assess a penalty for the first complaint alleging a violation provided that the employer shows it has fixed the violation within 30 days of receiving the Commission’s notice of violation. But if an employer does not cure the violation or has a subsequent violation, it may be required to pay a civil penalty of up to $250,000.

• Confirm that all job postings and advertisements, whether internal or external, include the necessary salary ranges.
• Train and educate human resources personnel and all management on the law’s requirements.

The New York City Commission on Human Rights provides helpful guidance and we can assist with any questions you may have.

Westchester County’s salary transparency law is effective starting Sunday, November 6, 2022. Employers must state in their postings the minimum and maximum salary for any job, promotion or transfer opportunity that the employer believes in good faith at the time of the posting it would pay. The law does not apply to a job posting for temporary employment at a temporary help firm. Anyone who believes they have been aggrieved by a violation of the law may file a complaint.

Many have asked whether New York State will require similar postings. New York State’s pay transparency law is awaiting signature by Governor Hochul and will be effective 270 days thereafter. If signed into law, any job, promotion or transfer opportunity advertised that can or will be performed, at least in part in New York State must disclose the compensation or a range of compensation for the position and the job description, if a job description exists. Advertisements for positions paid solely on commission must state that compensation shall be based on commission. The law requires the Labor Commissioner to promulgate rules and regulations to effectuate the law. Stay tuned for further developments on this next year.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Karen Gillen, an O’Melveny counsel licensed to practice law in Arizona, New Jersey, and New York, and Jeffrey Kohn, an O'Melveny partner licensed to practice law in New Jersey and New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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