On April 28, 2022, the New York City Council (the “Council”) approved an amendment to a recently enacted pay transparency law, 2022 Local Law 32 (the “Law”) by an overwhelming majority. The Law will require employers to disclose salary ranges in advertisements for jobs that are performed, at least in part, in New York City, and was set to become effective on May 15, 2022. After significant pushback from the business community, the Council introduced a new bill, Int. No. 134-A (the “Amendment”), to offer additional clarity and time for employers to comply. The Amendment is expected to be signed into law by Mayor Eric Adams. Of greatest immediate significance, once signed, the Amendment delays the effective date of the Law from May 15 to November 1, 2022.
The Amendment clarifies that advertisements for any job, promotion or transfer opportunity will have to include a statement of either a minimum and maximum annual salary or the minimum and maximum hourly wage. The Law will apply to advertisements seeking both exempt employees who earn a salary, and non-exempt employees, who may be paid on a salary or hourly basis.
As we previously discussed, in an early guidance issued by the New York City Commission on Human Rights (the “Commission”), the Commission indicated that it would enforce this law with respect to (1) positions that will be performed in New York City, and (2) remote positions (“positions that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home”). While a prior version of the Amendment would have excluded fully remote positions that were not “required to be performed, at least in part, within New York City” from coverage under the Law, the Council removed the exclusion following a public hearing held on April 5, 2022. The Amendment now tracks the Commission’s earlier guidance on this point, specifying that the requirement will not apply to positions that “cannot or will not be performed, at least in part,” within New York City. Further, at the April 28th City Council meeting, several members clarified that the Amendment was intended to apply to fully remote positions, eliminating confusion as to the reach of the Law to any remote position that could potentially be performed by a New York City resident.
Significantly, the Amendments do not include a previously contemplated change that would have excluded many small employers from the Law’s coverage. An initial draft of the Amendment would have raised the threshold number of employees from four to 15, but that proposal, among others, drew criticism at the April 5th public hearing.
Instead, in an effort to offer some relief to small business owners, the Amendment limits employers’ exposure to legal action, providing that the Law does not impart a private right of action to applicants or candidates from the general public under the New York City Human Rights Law. However, current employees of an employer may bring a civil action against that employer for alleged failure to comply with the Law’s requirements regarding advertisements for job, promotion, or transfer opportunities. While applicants and other non-employees cannot pursue a civil claim for a violation of the Law, such individuals may report violations to the Commission, which may exercise its investigative and administrative enforcement authority to address alleged non-compliance.
The Amendment also adds new provisions regarding civil penalties for violations of the Law. Notably, these include no monetary penalty for an employer’s first violation of the Law that is cured within 30 days of receiving a copy of a complaint. Proof of a cure can be submitted electronically, but, upon acceptance by the Commission, would serve as “an admission of liability for all purposes” for the first violation.
We will keep you apprised of any further guidance regarding enforcement and penalties as it is issued, and of course, whether the Amendment is signed by Mayor Adams prior to the May 15 effective date of the Law.