Effective September 18, 2023, employers will be required to comply with a new pay transparency law for jobs that can be performed, at least in part, in the state of New York.
The law is similar to the pay transparency statutes of New York City (see link), Westchester County and Ithaca in that the New York State law requires employers (and any agent thereof, such as an employment agency) to include a good-faith minimum and maximum pay range with any external job advertisements or internal postings for transfers and promotions, that can or will be performed, at least in part, in New York State. Unlike the local laws, the state law expressly allows the inclusion of a fixed pay rate or salary, as opposed to a range (although the laws that require a range allow for the minimum and maximum to be the same number). For a commission-based job, the ad or posting may simply state compensation is by commission.
The state law also goes further than the local laws by requiring a job description to be included with any ad or posting if one exists. The law does not obligate an employer to create a job description. Because the law does not define “job description,” presumably any materials in the employer’s possession that provide or contain any explanation of the functions of or qualifications for a position would qualify as a “job description.” Employers also must maintain records of the pay ranges for advertised positions as those ranges change over time, and maintain any job descriptions in existence for such positions. The law does not state how long such records need to be maintained.
While the New York State law does not provide a private right of action, individuals may file complaints with the NYS Department of Labor. The law prohibits retaliation (e.g., a refusal to interview or hire) against applicants or employees who exercise their rights under the law, which likely would include asking for the pay range of an advertised or posted position. The NYS Commission of Labor is tasked with issuing applicable regulations and enforcing the law, including by conducting investigations of possible violations and complaints filed by individuals. Violations can result in civil fines of $1,000 for the first violation, $2,000 for the second and $3,000 for the third and beyond.
Vedder Price will continue to monitor the legislation and the adoption of any regulations or guidance.