Int. 1208-2018 amends the New York City Human Rights Law (NYCHRL). It applies to employers with at least four employees in the Big Apple on their payroll and will require them to openly disclose the minimum and maximum salaries for each given position. In late April, New York’s City Council voted to update the bill to exempt jobs carried out entirely elsewhere, which rescheduled the enactment date to November 1, 2022.
As previously reported by Best Lawyers in a March issue of All Rise, this new legislation will require employers to include salary ranges on all current and future job listings. It will also extend to internal company postings for promotion or transfer opportunities. Employers must also determine a position’s salary range prior to posting online and based on a “good faith” estimation. Employers that fail to do so run the risk of receiving a discriminatory practice claim under the NYCHRL as well as heavy monetary penalties.
According to the NYC Commission on Human Rights, employment agencies are also covered by the new law. Regardless of their size, agencies “must ensure that any job listings they promote or seek to fill comply with the new salary transparency requirements.” But the law also wades into a gray area when considering temporary help. Certain staffing firms are exempted from the rule, however, the employers who collaborate with temporary help firms must follow the new law.
Ahead of this new law and its potential impact on employment discrimination claims, Outten & Golden partner Wendi S. Lazar said that going forward, employers need to be realistic when posting salary information.
“If you post a job and say the lowest wage is $75,000 and the highest is $150,000, you’re casting a wide net for applicants, but you’re also advertising the existing job to current employees,” said Lazar, who co-heads her firm’s Individual Practice and the Executives and Professionals Practice Group. “If a similarly situated employee earns $70,000 they could bring a claim under city, state and/or federal equal pay and other discrimination laws. If an employee gets the job, but is paid less than the posting, they could certainly file a claim under the new law, as well.”
Several states, including California, Colorado, Connecticut, Maryland and Nevada, have passed pay transparency legislation in recent years. Eyes were on Colorado in 2021, when employers attempted to circumvent state law by advertising for remote workers based in other states.
Lazar also noted that definitions of words like “work” and “location” may come into play if more claims are filed in violation of transparency laws.
“Remote work used to be a company perk,” said Lazar, who was named a 2022 “Lawyer of the Year” by The Best Lawyers in America® in New York City for Employment Law – Individuals. “Now, employers can potentially create the risk of employment claims if they do not carefully consider the scope and location of the work—in addition to displaying the salary range.”
For more employment law editorial and thought leadership, be sure to check out the Second Annual Best Lawyers: The Employment Law Digital Issue, available exclusively on www.bestlawyers.com on May 23, 2022.
Justin Smulison is a professional writer who regularly contributes to Best Lawyers. He was previously a reporter for the New York Law Journal and also led content and production for the Custom Projects Group at ALM Media. In addition to his various credited and uncredited writing projects, he has developed global audiences hosting and producing podcasts and audio interviews for professional organizations and music sites. JustinSmulison.contently.com