NYC Commission on Human Rights Publishes Guidance on Disclosure of Salary Ranges In Job Postings; City Council Proposes Amendments

As discussed in our previous advisory, the New York City Council passed a law amending the New York City Human Rights Law (NYCHRL) to require that employers disclose a salary range for positions in all job postings. As the law was not vetoed by former Mayor DeBlasio or Mayor Adams, it is currently set to go into effect on May 15, 2022.

The New York City Commission on Human Rights (NYCCHR) issued guidance on the new law, which answers many of the questions employers had when the law was first passed in December 2021. Notwithstanding the recent NYCCHR guidance and the upcoming effective date of the new law, the NYC Council has recently proposed additional amendments to the law, as explained below, that would extend the effective date of the law to November 1, 2022, and provide additional clarity for employers.

Guidance

The NYCCHR's Guidance on the scope and application of the new law is available here and addresses the following questions:

• 1. Which employers must comply with the law? Unless a proposed amendment is passed (as described below), the law will apply to all employers who are covered by the NYCHRL. While the NYCHRL applies to employers who have four or more employees or one or more domestic workers, the law will apply to any company with at least one employee in NYC, as the guidance states that "owners and individual employers count towards the four employees. The four employees do not need to work in the same location, and they do not need to all work in New York City. As long as one of the employees works in New York City, the workplace is covered."
• 2. What is a job posting? The law will apply to any written description of an available job, promotion or transfer opportunity that appears in any medium, including internet advertising, internal bulletin boards, newspapers, and printed flyers distributed at job fairs.
• 3. Must all jobs be posted? No. The law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.
• 4. Does the law apply to remote positions? Yes. The guidance states that the law will apply to "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." The proposed amendment, described below, would limit that application.
• 5. What positions does the law apply to? All employees who are protected under the NYCHRL, including exempt and non-exempt positions, full and part-time employees, and even independent contractors. Although the law uses the term "salary," the guidance states that the salary range can be expressed as an annual salary or an hourly rate.
• 6. Do employers always have to provide both an upper and lower rate? It depends. If the employer has no flexibility, the rate can be one set amount, such as "$20/hour" or "$50,000/year." The range cannot be open-ended at either end, however, as the guidance states that "'$15 per hour and up' or 'maximum $50,000 per year' would not be consistent with the new requirements."
• 7. Does the salary range have to include all types of compensation? No. The range must provide the base wage or rate of pay but need not include items such as overtime, vacation, medical insurance or other benefits or "[o]ther forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging."
• 8. Who can file a claim? Like other parts of the NYCHRL, individuals may file a complaint with the NYCCHR whose Law Enforcement Bureau may also initiate investigations.
• 9. What are the penalties for failing to post salary ranges? Companies that fail to comply may have to pay monetary damages to individuals, as well as "civil penalties of up to $250,000," and may be required to "amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief."

Proposed Amendments

In addition, a bill has been introduced in the NYC Council, T2022-0521, that would amend the law in several ways:

• The effective date of the law would be extended from May 15, 2022, to November 1, 2022, which will provide the NYCCHR additional time to draft regulations and additional guidance and provide employers additional time to create policies and procedures to comply with the law.
• The posting requirement would not apply to employers with fewer than 15 employees.
• The new bill would also relieve all employers from the obligation to post salary ranges when the employer posts a general notice that it is hiring, but "without reference to any particular position."
• Fully remote positions, where no work is performed in NYC, would not be covered as the amendment states that it will not apply to "[p]ositions that are not required to be performed, at least in part, in the city of New York."
• The word "salary" is replaced with the phrase "minimum and maximum hourly or salary compensation," making it clear (as noted in the guidance) that the posting requirement will apply to both exempt and non-exempt positions.

The bill has been referred to the Committee on Civil and Human Rights. We will continue to monitor for further developments and will provide new information when it becomes available.