New York State Adopts Amendments to Pay Transparency Law

UPDATE: Governor Hochul has signed the below amendments into law – the amended New York State pay transparency rules will become effective September 17, 2023.

Coming on the heels of Governor Hochul signing into law New York State’s pay transparency law on December 21, 2022—which we reported on here—the New York State Legislature recently approved chapter amendments to the law, which is still slated to take effect on September 17, 2023.  Governor Hochul recently signed these changes into law.

Arguably, the amendments’ most notable revision requires New York employers to disclose the compensation range and job descriptions for advertisements of a job, promotion, or job opportunity that “will physically be performed outside of New York but reports to a supervisor, office, or other site in New York.”  Such disclosures are now required in addition to those positions that will be physically performed in New York (which are already covered by the law).  In practice, this could extend the law’s disclosure requirement to advertisements for any remote position performed outside of New York that “reports” to an individual or office located in New York.  The amendments do not provide any clarity on the contours of what constitutes “report[ing] to” in this context.  Notably, New York City’s law (which we reported on here and here), excludes such positions from its transparency requirements.

The newly enacted amendments also expand the definition of “advertising” to include positions that are made “available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.”  While a relatively minor addition, this amendment ensures that “advertise” includes both internal and external, electronic and paper, advertisements for covered opportunities.

Finally, the newly enacted amendments remove the law’s record-keeping requirements, which previously required employers to keep and maintain records to comply with the law, including but not limited to: (i) the history of compensation ranges for each job, promotion, or transfer opportunity; and (ii) the job descriptions for such positions (to the extent they exist).  The amendments eliminate this requirement, which, as we previously reported, was somewhat vague with respect to what constituted “necessary records.” 

With Governor Hochul’s recent signature of these amendments, the revised law has the potential to significantly expand the breadth and reach of the disclosure requirements (although it does eliminate the record-keeping requirements).  New York City employers must now grapple with compliance across two regimes – one from the City and one from the State – that are beginning to look more discordant.  And, to make matters even murkier, further changes may be afoot in New York City as well – a recent initiative was introduced in New York City Council that could amend the City’s pay transparency law to require the disclosure of non-salary wage information such as bonuses, benefits, stocks, bonds, options and equity or ownership interests.  Although the initiative is in its infancy, if passed, New York City’s pay transparency regime could begin to look more similar to those in Colorado and Washington which require significantly more information to be disclosed in job advertisements.

We will continue monitoring these changes and any additional guidance released by New York State and New York City.  And, as always, Mintz’s Employment team stands ready to assist with any compliance concerns you may have.

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