On March 3, 2023, New York State Governor Kathy Hochul signed an amendment to the New York state pay transparency law.
Background: What is the New York State Pay Transparency Law?
Under the originally enacted New York pay transparency law, all private sector New York employers with four (4) or more employees are required to list compensation or a range of compensation for all advertised job postings.
Specifically, any advertisement for a job, promotion, or transfer opportunity that can or will be performed at least in part in New York, must contain: the compensation or range of compensation and the job description if such description exists. For jobs paid solely on commission, advertisements and postings must include a general statement that the position is commission based.
Under the original law, employers were also required to maintain necessary records including the history of compensation ranges for each job, promotion or transfer opportunity and the job descriptions for such positions if such descriptions exist. Range of compensation is defined under the law as the “minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity.”
Employers are prohibited from refusing to interview, hire, promote, employ or otherwise retaliate against an applicant or current employee for exercising any rights under the law.
When Does the New York Pay Transparency Law Take Effect?
The New York pay transparency law takes effect on September 17, 2023, along with recent amendments which address issues relative to remote employees, record keeping requirements and definitions.
What Are the Recent Amendments to the New York Pay Transparency Law?
The amendments signed by Governor Hochul on March 3, 2023 made the following changes to the law:
- Narrowed the scope of application of the law to jobs, promotions, or transfer opportunities that will “physically be performed, at least in part, in the state of New York, including a job, promotion, or transfer opportunity that will physically be performed outside of New York but reports to a supervisor, office, or other work site in New York.” By placing a physical performance or reporting requirement to a supervisor, office or other worksite in the state of New York, the law therefore does not apply to fully remote positions which do not feature a reporting requirement in New York as referenced above.
- Removed the employer record keeping requirement.
- Inserted a definition of “advertise” which shall mean “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity,” thereby explicitly including internal postings within the law’s scope as well as external postings.
While the record keeping requirement has been removed, employers are advised to maintain sufficient documentation of their compliance with the law in the event that they are required to defend any actions which may implicate the law’s transparency requirements.
Violations of the law will result in the imposition of a civil penalty in an amount not to exceed $1,000.00 for a first violation, $2,000.00 for a second violation or $3,000.00 for a third or subsequent violation.
Employers should review their current posting and compensation practices with their human resource departments to ensure compliance with the law in advance of the September 17, 2023 effective date.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.