As expected, Governor Hochul recently signed a new pay transparency law (S.9427-A/A.10477) that will impact nearly every job posting in the state of New York. Like New York City’s pay transparency law that went into effect last year (which WISE blogged about here), employers and recruiting agencies who are advertising for a position that will be performed in New York State will need to include specific pay ranges in their job postings to be compliant with the new law.
Key Job Posting Criteria That All Employers Advertising in New York Must Know
Beginning on September 17, 2023, all covered employers will need to include the following information in any advertisement for any job, promotion, or transfer, that will be performed, at least in part, in the state of New York:
- The compensation or a range of compensation for the job, promotion, or transfer opportunity; and
- The job description for the position being advertised (if such a description exists).
Covered employers include: any person, corporation, limited liability company, association, labor organization or entity employing four (4) or more employees in any occupation, industry, trade, business or service, or any agent thereof; and any person, corporation, limited liability company, association or entity acting as an employment agent or recruiter, or otherwise connecting applicants with employers, excluding certain temporary help firms as defined by New York law.
Importantly, the term “range of compensation” means the minimum and maximum annual salary or hourly range of compensation for a position that the employer believes in good faith to be accurate at the time of the posting of an advertisement for the position. This means that employers can no longer include open-ended hourly or salary ranges in their postings (i.e. “at least $20/hour” or “salary of up to $65,000 per year”).
Employers should plan to include a range that they realistically expect to pay the successful candidate(s), while leaving enough room in the range for negotiation, or to account for candidates who might bring varying levels of skills and experience to the position. This rule applies to all positions that are advertised in the state; however it does not appear to apply to positions that are offered only to one prospective employee, which are not advertised (internally or externally) for groups of potential candidates.
Another unique component of the NY State law is that it requires employers who hire employees paid solely on commission to provide a general statement in the posting that the compensation shall be based on commission. Covered employers must also be prepared to maintain records of the history of compensation ranges for each job, promotion or transfer opportunity offered that is covered by this law, as well as any existing job descriptions.
Employers are of course banned from refusing to interview, hire, promote, or otherwise take adverse action against an applicant or employee who exercises any rights under this law. Employers who violate the law can be subject to civil penalties for each violation.
Next Steps
Employers and recruitment agencies who plan to advertise for positions that will be performed in New York should begin reviewing and updating their job postings now to be in compliance with the new law when it goes into effect in September. This means taking a close look at your current and past hiring practices, pay scale, job market and relevant compensation data to determine the appropriate range for each position before posting.
You should anticipate that current employees who do not already have access to company pay scales are likely to see these postings and consider how their own compensation measures up. Employers should take care to ensure that employees working in substantially similar roles and who have similar skills and experience are paid in alignment with the new positions advertised (and applicable equal pay laws). Please also remember that employers cannot discourage employees from discussing their own pay or other terms of employment with other current employees.
