NYC Wage Transparency Law Goes Into Effect November 1, 2022; Westchester County, NY Wage Transparency Law Goes Into Effect November 6, 2022
Employers who employ individuals who work in New York City should be prepared to comply with the New York City wage transparency law, which goes into effect on November 1, 2022.
In addition, employers who employ individuals who work in Westchester County, N.Y., should be prepared to comply with a similar wage transparency law that goes into effect on November 6, 2022.
In preparing for compliance with the NYC law, employers can refer to guidance issued by the New York City Commission on Human Rights (NYCCHR) and to the following advisories previously published by DWT:
- NYC Council Amends Law Requiring Disclosure of Salary Ranges in Job Postings
- NYC Commission on Human Rights Publishes Guidance on Disclosure of Salary Ranges in Job Postings; City Council Proposes Amendments
- NYC Employers Will Be Required to Post Salary Ranges in Job Advertisements as of April 2022
Comparison of NYC Law and Westchester County Law
The two laws are similar in most respects, except as noted below:
Westchester County |
NYC |
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Who is covered by the law?
Different definition of "employer." |
The Westchester law applies to employers with at least four employees located in Westchester County. Independent contractors are not included in determining the four employee threshold, as the definition of "employee" under the Westchester Human Rights Law ("WHRL") specifically excludes independent contractors. The wage transparency law does not specify whether owners are included in determining the four-employee threshold, nor whether all four employees have to be located Westchester. |
Employers with four or more employees (including independent contractors and owners), or one or more domestic workers, at least one of whom is located in New York City. |
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What are covered employers required to do? Same |
Covered employers must disclose the compensation range, from the lowest to the highest amount that the employer in good faith believes at the time of the posting it would pay in all postings for jobs, promotions or transfer opportunities. |
Covered employers must disclose the compensation range, from the lowest to the highest amount that the employer in good faith believes at the time of the posting it would pay for the advertised job, posting or transfer opportunity. |
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What jobs are covered? Same |
Remote positions are included. The law states that the compensation range must be included in a posting for any job that "can or will be performed, in whole or in part, in Westchester County, whether from an office, in the field, or remotely from the employee's home." |
Remote positions are included. According to the NYCCHR guidance, compensation range must be included in a posting for any job 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." |
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What is a posting? Similar |
A "posting" is any written or printed communication, whether electronic or hard copy, that the employer is recruiting and accepting applications for a specific position. |
A "posting" is 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. |
| What if there is no range? | Not addressed in the law and no guidance has been issued. |
If an employer has no flexibility in setting compensation for a position, the employer can list one set amount, such as "$20/hour" or "$50,000/year." An employer cannot, however, list a range that is open-ended at either end. For example, a posting that says "$15 per hour and up" or "maximum $50,000 per year" would not comply with the law's requirements. |
| Do employers have to post all jobs? Similar. |
No, the law does not apply to a "Help Wanted" sign or similar communication which states that the employer is accepting applications without reference to any particular positions. |
No, the law does not require employers to post all positions and an employer may hire without using an advertisement or other posting. |
| What compensation must be included in the posting? |
Not addressed in the law and no guidance has been issued. |
The posted range must include only the base wage or rate of pay for the position and need not include items such as overtime, vacation, medical insurance or other benefits or other forms of compensation, such as commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging. |
| Who can file a complaint? |
Not addressed in the law and no guidance has been issued. |
Only current employees may file an action against their employer with the New York City Commission on Human Rights (NYCCHR) for advertising a job, promotion or transfer opportunity without posting a minimum and maximum hourly wage or annual salary. |
| What are the penalties? |
Violations of the law are subject to the penalties described in Section 700.11(h) of the WHRL, which include monetary damages to individuals, civil penalties not to exceed $125,000.00, and civil penalties not to exceed $250,000 for willful violations. |
There will be no penalty for first violations if the employer corrects the violation within 30 days. However, an employer's submission of proof that the violation was corrected "shall be deemed an admission of liability for all purposes." For additional violations, companies that fail to comply will have to pay monetary damages to individuals, as well as civil penalties of up to $250,000. |
Prohibition on Requesting Compensation History
Under the Westchester County law, employers also cannot ask or require applicants to reveal their compensation history, ask a former employer for the applicant's compensation history, or rely on that wage history in determining compensation.
The sole exception to this prohibition is when an applicant voluntarily provides compensation history to support a higher wager than the employer has offered, in which case the employer may, after obtaining written authorization from the applicant, contact a prior employer to confirm the prior compensation.
Similar laws that prohibit inquiries into an applicant's salary history during the hiring process went into effect in New York City in 2017 and in New York State in 2020, as we previously reported. The NYC and NYS laws also allow employers to verify applicants' representations about their salary history if the applicant, voluntarily and without prompting, offers information about salary history for the purposes of negotiating for higher compensation.
Proposed New York State Law
New York State has also proposed a wage transparency law that has not yet been signed by Governor Hochul. To the extent that the NYC law imposes stricter requirements on employers, the NYC requirements would apply.
By contrast, the Westchester County law has a preemption clause, which states that the law will be "null and void" if a New York State or federal wage transparency law is enacted that "incorporate[es] either the same or substantially similar provisions." As no similar federal law has been proposed, if the NYS law is signed by the Governor, employers who are only located in Westchester County would have to comply with the NYS law only.
Next Steps
Employers in New York City and Westchester County, N.Y., should review their current compensation ranges to assess whether to make any changes to attract new candidates or retain current employees.
In addition to including ranges for NYC jobs that will be posted on or after November 1, 2022, and for Westchester County jobs that will be posted on or after November 6, 2022, employers should review any current postings and update them to include compensation ranges before the effective dates of these laws. These include jobs that are posted on a company's website or intranet, as well as jobs posted in any online forum such as LinkedIn or Indeed. If an employer uses an employment agency to post positions, the employer should provide compensation ranges to the agency and ask that they be included.
We will continue to monitor wage-transparency-law developments and provide new information when it becomes available.