The new law requiring employers to include minimum and maximum potential salaries in job advertisements and postings for certain New York City positions will take effect as amended on November 1, 2022.

As summarized in a previous LawFlash, New York City enacted Local Law 32 of 2022 (Salary Disclosure Law), which required employers to include a good faith estimate of the minimum and maximum salary it expects to pay in any advertisement for a job, promotion, or transfer opportunity in New York City. The good faith estimate must be made at the time of posting the advertisement; however, it does not require an employer to stay within that range when making the final employment offer.

The Salary Disclosure Law was initially set to go into effect May 15, 2022. After the Salary Disclosure Law was enacted, both industry and labor advocates lobbied the City Council for amendments which would clarify ambiguities and address other issues. Following a City Council Committee on Civil and Human Rights hearing, the City Council compromised with stakeholders and reached agreement on Int. 134-A (Amendment Legislation), which was passed by the City Council on April 28, 2022, and signed into law by Mayor Eric Adams on May 12.  

WHAT’S NEW

In addition to changing the effective date of the Salary Disclosure Law from May 15 to November 1, the Amendment Legislation modified the law in several other important respects.

First, the Salary Disclosure Law will not apply to positions “that cannot or will not be performed, at least in part,” in New York City. Previously, the Salary Disclosure Law did not contain an express jurisdictional limitation. Originally, the City Council sought to exempt positions that were “not required to be performed, at least in part,” in New York City.

As ultimately amended, the Salary Disclosure Law’s language aligns with the fact sheet issued by the New York City Commission on Human Rights’ (NYCCHR) before the Amendment Legislation was passed. This fact sheet advises employers that the Salary Disclosure Law applies to positions in New York City in “an office, in the field, or remotely from the employee’s home.” The fact sheet will likely be amended, however, to reflect the Amendment Legislation.

Second, the Salary Disclosure Law will also only require disclosure of annual salary and hourly wages (as opposed to “compensation” more generally). This means that other forms of compensation, such as bonuses, commissions, benefits, and longer-term incentive opportunities, are not required to be disclosed in job advertisements.

Third, only current employees will have a private right of action under the Salary Disclosure Law in relation to advertisements for a job, promotion, or transfer opportunity with their current employer. Prospective employees will not have a private right of action.

Fourth, covered employers also will not be subject to any penalty for an initial violation of the Salary Disclosure Law, so long as the employer submits proof that a violation has been cured within 30 days of service of a complaint from the NYCCHR. Employers will not, however, have an automatic right to cure subsequent alleged violations to avoid penalties or damages.

Fifth, “general notices that an employer is hiring without reference to any particular position” will not be expressly exempt from coverage. Initially, the City Council sought to expressly exempt such notices.

ANALYSIS

The delay in the Salary Disclosure Law’s effective date is a welcome development for employers, and the Amendment Legislation otherwise clarifies some of the Salary Disclosure Law’s initially broad language. The NYCCHR is expected to issue an amended fact sheet and additional guidance closer to the new November 1 effective date.

NEXT STEPS

Employers should consider taking steps now to comply with the new law as amended, including:

• Reviewing which roles the employer expects to be performed, at least occasionally, from New York City
• Determining and documenting salary ranges for all positions where individuals are currently working in New York City
• Reviewing existing job posting templates or creating new templates to use beginning November 1, 2022 (including internal listings for promotion and transfer opportunities)
• Training supervisors, managers, compliance personnel, human resources, and legal professionals on the implications of the new law—including as to appropriate communications with applicants and employees
• Consider conducting a pay equity audit (either for certain positions in New York City or a broader review of current pay for departments with New York City) because salary information provided in external job postings will become public on November 1, 2022
• Monitoring for additional rulemaking and guidance from the Commission on implementation of the new law

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