Beginning on September 17, 2023, employers in New York State will be required to disclose salary and wage ranges for advertised jobs and promotions. This law mirrors New York City’s Salary Transparency Act which made similar requirements of businesses in November 2022, with some differences. For example, NYS’s law differs from NYC’s in that it requires covered employers to include the job description in writing, maintain a history of compensation ranges and job descriptions, and does not provide an ability to cure first time-violations before imposition of a civil penalty.
Purpose. The press release noted that this bill is intended to “empower workers with critical information, reduce discriminatory wage-setting and hiring practices, and help level the playing field for all workers.” Governor Hochul also stated that this law will help end “pervasive pay gaps for women and people of color.”
Covered Employers. Any business which:
- Employs four or more employees in New York State, as well as out-of-state; or
- Employs four or more employees out-of-state who report to an in-state employer.
The language of the statute likely covers remote workers as part of the total employee count. This law does not count independent contractors as employees.
What the Law Entails. This law requires employers to:
- Disclose salaries, wages, or their ranges for advertised jobs, promotions, or transfer opportunities;
- Use good faith in reporting the salaries, wages, or their ranges;
- Explicitly post in writing if the position is based on commission; and
- Keep and maintain necessary records to show compliance with the law.
NYS’s law does not preempt or supersede any local laws, rules, or regulations, including NYC’s pay transparency law. NYC employers will have to comply with both NYS and NYC’s laws.
Enforcement. There is no private enforcement action. The sole enforcement comes through the NYDOL. Penalties for violations can be up to the amount below:
- First Violation: $1,000
- Second Violation: $2,000
- Third Violation: $3,000
Factors considered in determining a penalty include business size, good faith of the employer, the gravity of the violation, the history of previous violations, and the failure to comply with recordkeeping or other non-wage requirements. This law also prohibits retaliation against workers who file a complaint with the NYDOL for actual or potential violations of the pay transparency requirements.
The Bottom Line. NYS’s law leaves us with some uncertainty and leaves NYDOL to promulgate rules and regulations. Guidance may be provided as to what good faith reporting entails, as there has been some issue with the NYC law regarding salary ranges that have been too broad. Employers should take the following steps:
- Assess compensation policies;
- Determine pay ranges for all positions;
- Review and revise existing job-posting templates;
- Train Human Resources, recruiters, and hiring managers on the disclosure requirements; and
- Conduct a pay equity audit to ensure that there are no significant salary discrepancies.
The author thanks Richard Dow, law clerk, for his assistance with this article.