January 21, 2022
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In addition to the growing list of jurisdictions that have passed pay transparency laws, beginning May 15, 2022, New York City employers will be required to include salary ranges in job postings.
The new Pay Transparency Act makes it an “unlawful discriminatory practice” under New York City Human Rights Law (“NYCHRL”) for an employer to advertise a job, promotion or a transfer opportunity without indicating the minimum and maximum salary of the position in the advertisement. .
The salary range may include the lowest and highest salaries that the employer believes in “good faith” they would pay for the employment, promotion or transfer at the time of posting.
In particular, the law does not define “advertise” and does not distinguish between job offers posted externally and internally. The law also does not define a “salary”, nor does it clarify the requirements for non-salaried positions.
The law applies to all employers with at least four employees in New York, and independent contractors are counted towards this threshold. Significantly, however, the law does not apply to temporary positions advertised by temporary help agencies.
Enforcement and Penalties
The New York City Commission on Human Rights is authorized to take action to implement the law, including, but not limited to, the enactment of rules and/or the imposition of civil penalties under the NYCHRL.
Growing Trend of Pay Transparency Laws
New York City’s Pay Transparency Act is part of a growing trend in the United States.
In 2021, Colorado enacted a law requiring employers to disclose, among other things, remuneration or the range of possible remuneration in job advertisements. It should be noted that Colorado law is more extensive than New York’s in that it requires employers with even one Colorado-based employee to publish this salary information in all jobs for remote work (that is to saya job that can be performed anywhere, including Colorado).
Last year, Connecticut and Nevada enacted similar pay transparency laws, and Rhode Island passed a law (effective January 1, 2023) that will require employers to provide salary information or salary ranges to applicants and employees under certain conditions.
California, Marylandand Washington also have laws requiring salary disclosure, but only at the request of a candidate or employee, and each law’s disclosure requirements vary slightly. Maryland, for example, requires the disclosure of a position’s salary range upon request from any candidate. By comparison, California requires upon request disclosure of applicants who have had an initial interview and Washington requires upon request disclosure of applicants who have received an offer.
Similar to laws prohibiting questions related to a candidate’s salary history during the hiring process, these pay transparency laws aim to promote equal pay. Where national or local law provides for a private right of action, employers may face “accompanied” claims alleging non-compliance with wage disclosure in addition to claims of workplace discrimination and/or retaliation. job.
To take with
All covered New York City employers should take steps to ensure compliance with these new pay transparency requirements beginning in May 2022. Additionally, employers operating in multiple jurisdictions should carefully monitor the patchwork continually. increasing number of pay transparency laws to ensure compliance wherever they are.
The following Gibson Dunn attorneys assisted in preparing this client update: Danielle Moss, Harris Mufson, Gabby Levin and Meika Freeman.
Gibson Dunn attorneys are available to answer any questions you may have regarding these developments. To learn more about these matters, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s labor and employment law practice group, or the following individuals:
Danielle J. Moss – New York (+1 212-351-6338, [email protected])
Harris M. Mufson – New York (+1 212-351-3805, [email protected])
Gabrielle Levin – New York (+1 212-351-3901, [email protected])
Jason C. Schwartz – Co-Chair, Labor and Employment Group, Washington, DC (+1 202-955-8242, [email protected])
Katherine VA Smith – Co-Chair, Labor and Employment Group, Los Angeles (+1 213-229-7107, [email protected])
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Publicity for Lawyers: The attached materials have been prepared for general information purposes only and are not intended to be used as legal advice.