On December 21, 2022, Governor Hochul signed into law a bill that will require employers in New York State with four or more employees to include in any advertisement or job posting the minimum and maximum salary information for the position. The law will go into effect on September 17, 2023. As described in our post here, New York City enacted a similar law that went into effect on November 1, 2022.
Employers covered by the new legislation will be required to include in advertisements or postings 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.” Advertisements for commission-based positions may satisfy the disclosure requirement by stating that the employee’s compensation shall be based on commission. In addition, if a job description exists for such job, promotion, or transfer opportunity, the description must be disclosed. These requirements apply to any positions that can be performed, at least in part, within New York.
The law prohibits retaliation by employers against applicants or current employees for exercising their rights under the law, including by filing a complaint with the New York State Department of Labor (“NYDOL”) regarding an actual or potential violation of the law.
The law does not create a private right of action for potentially aggrieved individuals. Instead, the NYDOL has the sole power to enforce the law, and may impose civil penalties of up to $1,000 for a first violation, $2,000 for a second violation and $3,000 for any subsequent violations.
Although similar to its New York City counterpart, the New York State law contains several key differences:
- Unlike the New York City law, independent contractors are not considered in determining whether an employer meets the four-employee threshold for applicability of the State law.
- The New York State law contains a recordkeeping requirement, under which employers must keep and maintain necessary records to evidence compliance with the law, including the history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions, if they exist. The law does not specify for how long employers must maintain these records.
- The New York City law affords employers the chance to correct any first-time violation of the law within 30 days, without imposing a civil penalty. The State law, however, does not provide employers any opportunity to cure first-time violations before imposing a civil penalty.
- As noted above, the New York State law does not create a private right of action for employees. The New York City law, on the other hand, permits current employees to bring an action against their employer for advertising a job, promotion, or transfer opportunity without posting a minimum and maximum hourly wage or annual salary.
The State law provides that it does not supersede or preempt any provisions of any local laws or regulations; therefore, employers in New York City will be required to comply with both the State and City salary transparency requirements. The NYDOL may issue guidance before the law goes into effect later this year.