Leading up to the implementation of New York State's pay transparency law, the New York Department of Labor has released proposed regulations to clarify the wage disclosure obligations of employers.
Governor Kathy Hochul has signed Senate Bill S9427 and amended Senate Bill S1326, which requires covered employers in the state to adhere to new pay transparency requirements. Starting from September 17, 2023, private employers with a minimum of four employees (excluding temporary help firms) must include the minimum and maximum annual salary or hourly pay range in any job, promotion, or transfer opportunity advertisement. If applicable, employers must also disclose the job description for the position.
Although the proposed regulations are not yet final, they offer initial guidance for employers. The public can provide comments on the proposed regulations until November 12, 2023.
These regulations apply to jobs physically performed in New York or positions that report to a supervisor, office, or other worksite in New York. Being infrequently present in New York for work-related purposes, such as meetings, training, or conferences, does not require compliance with the statute.
Temporary help firms are not required to comply if they are hiring for other businesses. However, if they advertise "opportunities to work for the temporary help firm itself," they must follow the pay disclosure rules.
The compensation range must include the minimum and maximum annual salary or hourly range and cannot be left open-ended. If the rate being offered has no flexibility, a fixed wage or salary, such as $20 per hour or $25,000 per year, must be listed. Other forms of compensation, such as overtime pay, commissions, tips, bonuses, paid time off, etc., do not need to be disclosed in the job advertisement.
The obligation to include the salary range in a job advertisement applies regardless of whether it is posted directly by the employer or through a third-party, such as an employment agency, recruiter, or job listing website, as long as they have consented to post.
Employers are not required to create job descriptions and are not prohibited from hiring, promoting, or transferring employees without posting an advertisement. However, the proposed regulations mention "limited circumstances" where employers do not have to create them, suggesting that job descriptions are expected to exist when the job title does not clearly convey the duties of the position. Additionally, the statute does not mandate employers to advertise vacant positions or use any specific medium for posting jobs.
If the compensation range is too broad to fit within the space provided for the job advertisement, the employer may deliver the information in a separate attachment or addendum, as long as it is easily accessible and free of charge to applicants. The advertisement must state how the compensation information can be obtained.
All job advertisements must be for a single opportunity, with a specific salary range at a single geographic location. Advertisements for jobs that cover multiple geographic locations or levels of seniority must include multiple compensation ranges for each individual opportunity.
Violators may face civil penalties of $1,000 for a first violation, $2,000 for a second violation, and $3,000 for a third or subsequent violation.
Employers are required to provide an accurate representation of the wage range at the time of job posting, based on their good faith belief. However, the proposed regulations make it clear that employers have the flexibility to adjust the compensation range during the hiring process. In such cases, it is advisable to update the job description or make notes in the recruiting documentation to provide an explanation or justification for the change in the compensation range. This is particularly important in the event of an OFCCP compliance evaluation, as any unexplained adjustments may raise suspicions and require a defense.