New York Governor Kathy Hochul signed legislation today that amends Article 6 of the New York State Labor Law to require all private sector employers with four or more employees to disclose the “range of compensation” and job description when advertising any job, promotion or transfer opportunity that will be performed, at least in part, in the State of New York. The new law does not take effect until September 17, 2023, and excludes temporary help firms who recruit and hire their own employees and assign them to work for another organization.
Municipal employers should not be subject to this new requirement because Article 6, Section 190 of the New York State Labor Law excludes government agencies from its definition of “employer.” However, unlike other provisions of Article 6, the new law contains a separate definition of “employer” which does not expressly exclude government agencies. Instead, it defines “employer” to include “any person, corporation, limited liability company, association, labor organization or entity employing four or more employees in any occupation, industry, trade, business or service, or any agent thereof.” Nonetheless, because the definition of “employer” under New York Labor Law Section 190 expressly applies to Article 6 as a whole and government wages are publicly posted already, government agencies should be excluded from the requirement.
The term “range of compensation” is defined as the minimum and maximum annual salary or hourly range of pay the employer believes in good faith it is willing to pay at the time the job, promotion or transfer opportunity advertisement is posted. Advertisements for positions paid solely on a commission basis may comply with this requirement by stating that compensation is based solely on commission.
Employers are precluded from refusing to interview, hire, promote or employ a person because they exercise any right under the law, such as asking an employer for the pay range because it is not published as required. The new law also prohibits retaliation against any applicant or employee who exercises their rights under the law. Employers that violate this law are subject to civil penalties issued by the New York State Department of Labor (NY DOL).
The NY DOL is required to issue clarifying regulations. Hopefully, those regulations address key questions like the application of this law to remote workers. A remote position that performs at least some work in New York is covered. However, it is unclear whether a remote position is covered where the employee does not physically work in New York, but reports to a supervisor or human resource office in New York. When the NY DOL issues regulations or clarifying guidance, we will notify our clients.
