NYC Council Amends Salary Range Transparency Law; Delays Implementation Date

The New York City Council has amended the New York City Salary Range Transparency Act (the “Act”).  The Mayor has 30 days to sign the amended law.  As discussed in our initial post, the Act amended the New York City Human Rights Law (“NYCHRL”), creating an obligation on employers to disclose salary ranges in job advertisements for any position located in New York City.  We highlight the City Council amendments to the Act below.

The Law Now Goes into Effect on November 1, 2022.

The law, which was enacted on January 15, 2022, was initially slated to go into effect on May 15, 2022.  The Council has since voted to delay the effective date until November 1, 2022 to provide employers with more time to prepare to comply.  In the lead up to that new compliance deadline, employers should remain mindful that the New York City Commission on Human Rights – the agency that enforces the NYCHRL – previously released a Fact Sheet entitled Salary Transparency in Job Advertisements, which provides guidance on how the Commission interprets the law.  Certain portions of that guidance – particularly the interpretation of covered listings and the information they must contain – will likely remain unchanged if and after the Commission provides updated guidance in light of the amended law.  More on that guidance here.

The Core Obligation under the Law – Salary Range Disclosures – Remains Intact.

Even with the amendments, the NYCHRL will still make it an unlawful discriminatory practice for an employer to “advertise a job promotion or transfer opportunity without stating” the salary range for that position.  The City Council amended the law, however, to clarify that the disclosure extends to a position’s “annual salary” or “hourly wage” whereas the previous version of the law only referenced a “salary” range disclosure.  The previous guidance released by the Commission had sought to address this earlier omission of hourly wages, but the amended law now effectively addresses it. 

The Amended Law Confirms the Limits of the Law’s Reach Outside of New York City.

Following the initial passage of the Act, many New York City employers wondered whether the law required them to disclose the salary range for positions that arguably could be performed in New York City even if advertised in other jurisdictions.  The Commission later issued guidance providing that the law only applied to those 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.”  Like the Commission’s guidance, the City Council sought to address this ambiguity by clarifying that the amended law does not apply to “positions that cannot or will not be performed, at least in part,” in New York City.  Therefore, even if an employer is physically located within New York City, if the role it is seeking to fill will not (or cannot) be performed, in whole or in part, from New York City, then the employer need not post salary range information.  The amended law also appears to go further than the Commission’s guidance by excluding positions that cannot or will not be performed even in part in New York City.  However, we expect additional guidance from the Commission on this statutory exclusion as some ambiguity remains. 

The Amended Law Limits Rights and Remedies under the Law. 

The amended law forecloses a private right of action by job applicants – a significant employer-friendly change – which would have provided those individuals with the possibility of obtaining compensatory and punitive damages and attorney’s fees and costs in connection with a violation.  However, the amendments still permit current employees to sue their employers for violations.  Further, and importantly, where an employer is on the receiving end of an administrative complaint, the Commission must provide the employer with the opportunity to cure a first violation before subjecting them to civil penalties.  While employers will certainly welcome this development, they should be aware that a “proof of cure” will be treated as an “admission of liability” by the Commission. 

Next Steps:

We will continue to monitor for further guidance from the Commission and update this post accordingly.  In the meantime, assuming the Mayor’s impending signature, employers should continue their efforts to come into compliance as the core parts of the law remain intact.  As part of this:

• Employers should review the Commission’s existing guidance, particularly on the types of compensation information they should include in their job postings.  The Commission had earlier confirmed that employers need not include “other forms of compensation or benefits offered in connection with the advertised job,” including health insurance benefits, PTO, 401K contributions, severance pay, overtime pay, or other forms of compensation such as commissions, bonuses, tips or equity.  But employers should pay close attention to see whether the Commission changes its guidance on this issue. 
• Employers operating in jurisdictions outside of New York City should take note of whether other similar state laws apply (or may eventually apply) to them.  For example, Colorado now requires employers to provide more information than NYC, including a general description of any bonuses, commissions, benefits, or other compensation the employer is offering.  Connecticut has also recently enacted its own salary disclosure law, and California is considering its own similar measure.  Employers who are willing to fill a role with someone working in these jurisdictions, for example, should be mindful of fashioning their job postings accordingly.
• Employers should consider whether they should, as a best practice, update their postings more generally, no matter the role or location (including for existing postings), to include salary range information (and other compensation information) in order to be competitive and ease the potential administrative burden of parsing among various locations where employees are assigned (or choose) to work.
• Likewise, in posting this information, employers should consult with counsel to ensure they are in compliance with applicable equal pay laws.

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