February 7, 2023

Volume XIII, Number 38

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February 06, 2023

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New York City’s Upcoming Salary Range Disclosure Law Guidance Issues and Proposed Amendments Are Introduced

On March 28, 2022, the New York City Commission on Human Rights released official guidance (Guidance) regarding the upcoming pay transparency law, Int. 1208-B (Law), which requires all advertisements for jobs, promotions, and transfer opportunities for positions performed in the City to include a minimum and maximum salary range.  As we previously reported, the City Council passed the Law on December 15, 2021, and it currently is expected to take effect on May 15, 2022.

In addition, amendments to the Law have recently been introduced in the New York City Council (T2022-5021 (Bill)) which, if passed, will modify the Law in important ways, including delaying its effective date and further clarifying its requirements.

Covered Employers

The Law currently applies to all New York City employers that employ four or more persons. The Bill would increase the threshold to employers that employ fifteen or more persons. Under both, employers must include independent contractors furthering the employer’s business as well as an employer’s parent, spouse, domestic partner, or child working for the employer in the count of persons when determining whether the law applies to their business. The Guidance clarifies that all employees regardless of work location must be counted and that only one must work in the City for an employer to be covered.

Clarification of the Term “Salary”

The Law requires employers to post the minimum and maximum “salary” that the employer in good faith believes it would pay for any advertised position. The Guidance explains that the term “salary” encompasses base wages (e.g., $15 per hour) and other rates of pay (e.g., $50,000 annual salary) and states that the range cannot be open ended (e.g., $15 per hour and up). The Bill, however, would amend the Law to explicitly make clear that the requirement applies to non-exempt employees who are paid an hourly wage, by stating that employers must  post the minimum and maximum “hourly or salary compensation…”

The Guidance further explains, “[s]alary does not include other forms of compensation or benefits offered in connection with the advertised [position]” and gives examples of compensation that does not need to be included, such as:

  • commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging

  • overtime pay

  • benefits (including group health benefits, retirement benefits, and paid or unpaid time off) and.

  • severance pay.

In other words, only the base wage or salary for the advertised position must be stated.

Remote Positions

The Guidance advises employers (irrespective of location) to abide by the Law, “when advertising for positions that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.” Thus, employers who have at least one employee in New York City should remain mindful of the need to post salary ranges even for remote positions, if the job might be filled by a City resident.

The Bill proposes to amend the Law to expressly exclude “[p]ositions that are not required to be performed, at least in part, in the city of New York.” This additional exclusion appears to eliminate the need to include the pay transparency notice for fully remote positions where work is not required to be performed in New York City, which appears to address concerns raised by Colorado’s similar pay transparency law.

Other Exceptions

The Bill also proposes to amend the Law to eliminate the requirement for posting a salary range when the posting is a general “help wanted” sign without reference to a particular position.

Effective Date

As it stands, the Law becomes effective beginning May 15, 2022. The Bill would push back this effective date to November 1, 2022.

Whether this proposed legislation becomes effective or not, employers and their agents (e.g., recruiters) should review their current protocols for internal and external postings of jobs, promotions, and transfers for positions located in New York City. Employers should also take this opportunity to review how they determine salary ranges for positions, including the relevant factors they rely on for determining compensation. The City Council is holding a hearing on April 5, 2022 to further discuss the Bill.

Should the Bill be enacted, we anticipate updated guidance from the Commission on Human Rights.

©2023 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 90
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About this Author

Marc A. Mandelman, Epstein Becker Green, Workforce Management Lawyer, Restructuring Strategy Attorney
Member

MARC A. MANDELMAN is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He represents a variety of clients—including major corporations in the financial, insurance, fashion, retail, publishing, technology, and health care field—in all aspects of labor and employment relations.

Mr. Mandelman:

  • Routinely advises clients on designing and implementing restructuring strategies and the management of litigation risks associated with...

212-351-5522
Nancy Gunzenhauser Popper Labor Employment Attorney Epstein Becker Law Firm
Member of the Firm

NANCY GUNZENHAUSER POPPER is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Ms. Popper:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace

  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post-employment...

212-351-3758
Eric I. Emanuelson, Jr. Law Clerk New York
Law Clerk

ERIC I. EMANUELSON, JR.,* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. He will be focusing his practice on disability laws, employment litigation, and employment training, practices, and procedures.

Prior to joining Epstein Becker Green, Mr. Emanuelson worked as a Legal Intern at the General Counsel’s Office of the largest labor union representing federal government employees. He also served as a Legislative Aide to Connecticut State Senator Edward Meyer.

Mr...

212-351-3759
Lucas Peterhans Law Clerk Newardk New Jersey Business Employment Labor Epstein Becker & Green, P.C.
Law Clerk

With hard work and imagination, Lucas Peterhans* is part of the legal team that businesses depend on for their employment and labor law needs. He assists employers from various industries with a broad array of labor and employment matters, including claims under employment discrimination laws and advising clients in connection with executive compensation and employee benefits-related issues.

As a law student, Lucas worked as a judicial intern for Justice Ann Walsh Bradley of the Wisconsin Supreme Court. Prior to law school, he worked as a...

973-639-8272
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