If you’re an employer, you know just how important hiring is to the health of your organization. The hiring process has yet another layer of intricacy for employers with the New York State Pay Transparency Law. New York employers must now disclose salary information to job applicants and employees, with some exceptions. This is intended to help reduce pay disparities and promote transparency in compensation practices.
The New York Pay Transparency Law was signed by Governor Kathy Hochul in December 2022, amended in March 2023 and went into effect on September 17, 2023.
The law now requires employers with four or more employees to list the salary or salary range for all job postings, both internal and external, as well as for promotions and transfer opportunities.
The Department of Labor has issued proposed regulations, and employers should know about them. Indeed, if you’d like, you may send your comments to the DOL, which should consider all comments it receives.
Temp & Government Jobs. The proposed regs spell out that the law doesn’t apply to temporary help firms or government agencies. Temporary help firms are exempt from the law when hiring employees to work for other companies, as these positions are already subject to wage disclosure requirements. However, temporary help firms must still comply with the law when advertising internal positions for their own operations.
Remote Jobs. The proposed regs also make it clear that the law applies to all advertisements for jobs, promotions, or transfer opportunities for positions that will be physically performed, at least in part, in New York State. This includes positions that will be performed outside of New York State (e.g., remote work, telecommuting, or work-from-home) but report to a supervisor, office, or other work site in New York State. However, if an employee only visits New York State occasionally for work-related purposes such as a meeting, conference, or to communicate with employees in New York, that wouldn’t be enough activity to be considered a job performed in New York State per the proposed regs.
Advertisements. The law defines advertise as:
to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.
In other words, the law applies to both internal and external postings. The proposed regs indicate that the law applies to any ads online or in print. So assuming the regs are finalized, the law will apply to a physical job posting, sending a notice to an email list, a social media post, a newspaper ad, and other similar forms.
As well, the proposed regs make clear that employers are responsible for any postings made on their behalf by third parties with their permission, like their employment agency website. However, employers aren’t responsible for any postings “scraped” by a third-party website without their consent.
The proposed regs also make it clear that employers can always hire, promote, or transfer employees without posting an ad.
Further, the proposed regs tell us that where the compensation information is extensive and doesn’t fit on the ad, employers may provide the information in a separate attachment so long as it’s free of charge and easily accessible to a prospective applicant. The proposed regs don’t elaborate on what forms this may take, such as a QR code. So if the regs become effective, ensure any additional info is easily accessible and free for the taking.
Job Descriptions. We already know that the law requires a job description if one exists. The proposed regs go a bit further in requiring that all postings for a job, promotion, or transfer opportunity must contain a job description when available, and employers are required to create a job description except in the limited circumstance where the title conveys the job duties. Interestingly, although the regs are still pending, New York’s DOL has issued guidance, such as not requiring a job description when the job title clearly conveys the duties for a job – for example, like a dishwasher or a lawyer.
Pay Range. If an employer plans to use a pay range, the proposed regs say that it must include a minimum and maximum annual salary or hourly rate of compensation for the job, promotion, or transfer opportunity. If an employer chooses to use a fixed rate, like $20 per hour, that must be listed. The pay range can’t be open-ended; therefore a posting for $20+ per hour wouldn’t be permitted. The compensation range also can’t include the value of other forms of compensation or benefits such as employer-provided insurance, paid leave, or 401k benefits. However, the proposed regs encourage employers to disclose such benefits separately. In other words, employers can’t include other forms of compensation without disclosing the base rate of pay.
The proposed regs focus on what’s good faith versus bad faith employer conduct. For example, if the regs become final, then an employer that posts a very broad pay range could be subject to action by the DOL. Indeed, the law allows for a supposedly-aggrieved party to file a complaint. The proposed regs make it clear that aggrieved parties can include a prospective employee, an “organization acting on such person’s behalf” or a collective bargaining agent. So this is one way that unions and their organizers may seek to gain an advantage over workplaces that are non-union.
Steps for Employers. If you haven’t already, employers must take steps to comply with the law when advertising job openings. This is true even though the DOL regulations aren’t yet finalized. As we’ve suggested before, your current employees are going to see these job postings; therefore, it’s best to ensure that your current employees are being fairly compensated for their positions. To eliminate potential issues, take steps now, before you need to advertise for new staff members.
Public Comment. The 60-day public comment period on the proposed regs will expire on November 12, 2023. You can make public comments about the proposed regulations up until that date by email to firstname.lastname@example.org or by mail to Jill Archambault, Department of Labor, Building 12, State Office Campus, Albany, NY 12240.
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