The NYC Salary Range Transparency Law Intro 134 mandates that jobs paid an hourly wage, or an annual salary must disclose the minimum and maximum paid salary.
When must NYC employers disclose job posting salary ranges?
Beginning on May 15, 2022, New York City employers will have to disclose salary ranges in job postings. The law mandates that employers and their agents state the minimum and maximum salary in each job advertisement.
Does this apply to job promotions and transfers, too?
What size businesses does the NYC Salary Range Transparency Law apply to?
The law applies to New York City employers with four or more employees, or one or more domestic workers.
Forward to 3:50 to watch New York City Mayor, Eric Adams discussing Intro 134, and how it affects pay transparency laws.
New York City Mayor Eric Adams, May 12, 2022, City Hall, Blue Room, Lower Manhattan: “Intro 134, which will strengthen our pay transparency laws. The law applies to employees who are paid hourly or through an annual salary.
This means that for every listing for a job that is paid an hourly wage, or an annual salary must disclose what the minimum and maximum salary wage is.
This is the key point. We were not trying to be punitive. We were trying to change the mindset of those who were not listing the minimum and maximum salaries. So, the important part that we were able to come to and resolve is that employers who promptly submit proof of incurring their first violation will not be subject to civil penalties.
We’re not going to play the game that you can keep saying, 'Oops, I forgot to do so.' No. But, we’re going to use that to state if you do it again, then we’ll take those actions to send the right message for any future violations. This clarification makes sure that the law works for both workers and employers.”
How does NYC Intro 134 relate to Local Law 32 or 2022?
“Intro. 134 amends Local Law 32 of 2022, New York City’s salary disclosure law, to provide that the law applies to employees who are paid hourly or through an annual salary. As amended by Intro 134, the salary disclosure law would not allow a person to sue their employer unless such person is a current employee who is suing the employer for advertising a job, promotion, or transfer without posting a minimum and maximum hourly wage or annual salary. It also provides that the penalty for the first violation of this law would be $0, and employers will have 30 days to correct the violation. This bill also moves the effective date of Local Law 32 to November 1, 2022.”
What is the New York City Local Law 32 for 2022?
The law reads: “32. Employment; minimum and maximum salary in job listings. a. It shall be an unlawful discriminatory practice for an employment agency, employer, employee, or agent thereof to advertise a job, promotion, or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement. In stating the minimum and maximum salary for a position, the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity.”
When does the amended Local Law 32 go into effect?
Thanks to the NYC Intro 134, Local Law 32 goes into effect on November 1, 2022.
Does the NYC Salary Range Transparency Law apply to temporary hires?
According to Local Law 32 2022, subdivision 32b “does not apply to a job advertisement for temporary employment at a temporary help firm as such term is defined by subdivision 5 of section 916 of article 31 of the labor law.”
What is subdivision 5 of section 916 of article 31 of the Labor Law?
Subdivision 5 states: "Temporary help firm means a business which recruits and hires its own employees and assigns those employees to perform work at or services for other organizations, to support or supplement the other organization's workforce, or to provide assistance in special work situations such as, but not limited to, employee absences, skill shortages, seasonal workloads, or to perform special assignments or projects.”
What are the penalties for not complying with the NYC salary range transparency law?
The penalties can be severe. The reason for this is that the law views failure to include salary ranges as discriminatory. Civil penalties can reach $125,000 for violations, and up to $250,000 if deemed willful, wanton, or malicious. On top of this, employees may have the right to a jury trial, and be awarded back pay, compensatory, punitive damages, and attorney's fees. Fortunately, as mentioned earlier, the first violation is designed to serve as a warning and will most likely be zero.
Are NYC Labor Laws 134 and 32 related to NY Salary History Bans?
Not exactly. However, in all salary related discussions with employees, it is in an employer’s best interest to know and understand New York State salary history bans.
May a prospective employer ask an applicant about their current or past salary, compensation, or benefits?
No. Effective January 6, 2020, Labor Law Section 194-a prohibits an employer from, either orally or in writing, personally or through an agent (directly or indirectly), asking any information concerning an applicant’s salary history information. This includes compensation and benefits. The law also prohibits an employer from relying on an applicant’s salary history information as a factor in determining whether to interview or offer employment at all or in determining what salary to offer. Please note that additional protections under local laws may also apply.
An employer may ask an applicant for their salary expectations for the position instead of asking what the applicant earned in the past.
Who is an “applicant?”
An “applicant” is someone who took an affirmative step to seek employment with the employer and who is not currently employed with that employer, its parent company, or a subsidiary. This includes part-time, seasonal, and temporary workers, regardless of their immigration status.
Does this law apply to current employees?
Yes. Employers cannot request prior salary history information from current employees as a condition of being interviewed or considered for a promotion. However, employers may consider information already in their possession for existing employees (i.e., a current employee’s current salary or benefits being paid by that employer). For example, an employer may use an employee’s current salary to calculate a raise but may not ask that employee about pay from other jobs.
What should an employer do to comply with the new Section 194-a of the Labor Law?
All employers should review their job applications and related processes and train hiring personnel to ensure compliance. For example, an employer should eliminate questions seeking an applicant’s current or past salary from all job applications, unless required by law. Additionally, an employer may wish to proactively state in job postings that it does not seek salary history information from job applicants.
May an applicant voluntarily disclose salary history information to a prospective employer?
Yes. The Labor Law permits an applicant to voluntarily disclose their salary history information to a prospective employer, for example, to justify a higher salary or wage, if it is being done without prompting from the prospective employer. If an applicant voluntarily and without prompting discloses salary history information, the prospective employer may factor in that voluntarily disclosed information in determining the salary for that person. An employer may not, for example, pose an “optional” salary history question on a job application seeking a voluntary response.
May an employer ask someone other than the employee or applicant about the employee or applicant’s prior salary history?
No. Employers may not seek or obtain such information from a separate source of the information, such as by asking an applicant’s former employer.
An employer may seek to confirm wage or salary history only if an applicant voluntarily discloses such information. An employer, however, is prohibited from relying on prior salary to justify a pay difference between employees of different or various protected classes who are performing substantially similar work as this violates Section 194 of the Labor Law.
Is an employer required to provide the pay scale or salary range for a position?
The Labor Law does not require an employer to post or set a pay scale for an open position. However, collective bargaining agreements may include such requirements.
Is an applicant protected from retaliation for complaining about a potential violation or refusing to provide their salary history?
Yes. The Labor Law specifically prohibits an employer from retaliating against an employee for refusing to provide their salary history or complaining about an alleged violation of the Labor Law.
What should an applicant do if they believe they have been retaliated against for refusing to provide salary history information?
An applicant who believes that they have been retaliated against should contact the Department of Labor’s Division of Labor Standards: Phone: 888-525-2267 E-mail: LSAsk@labor.ny.gov
May an employer inquire about salary history information required by Federal, State or Local Law?
Yes. However, employers may require salary history information only if it is required pursuant to Federal Law, State, or local law in effect as of January 6, 2020, the effective date of Section 194-a of the Labor Law.
Does this law apply to New York City employers or to public employers?
Yes. It applies to all public and private employers in New York State, including New York City and public authorities.
Does this law cover independent contractors?
This law does not apply to bonafide independent contractors, freelance workers, or other contract workers unless they are to work through an employment agency.
Does this law apply to jobs based in New York State even if the employer is not based in New York State?
Yes. This law applies to any position that will be based primarily in New York State, even if the interview process takes place virtually, via telephone or in another state.
How is the law enforced and what is an employee’s right of redress?
Individuals believing an employer violated this law may bring a civil court action against such an employer or they may contact the Division of Labor Standards.
What should employers do now to stay compliant with the NYC salary range transparency law?
Employers should begin by reviewing all job advertisements, promotion, and transfer opportunities. And don’t forget to include physical job listings as well.
If all this sounds complicated, you’re not alone. Staying compliant with the never-ending stream of new and amended laws is a huge headache. Fortunately, payroll service companies such as Baron Payroll are here to help.