Takeaways:

• New York State has amended the Pay  Transparency Law, which becomes effective September 17, 2023

• The amendments modify  the scope of jobs covered by  the law, eliminate the law’s recordkeeping requirements, and provide a definition of “advertisements”

• The Warehouse Worker Protection Act has also been amended

New York State Amends Pay Transparency Law

On March 3, 2023, Gov. Hochul signed Bill A999/S1326 into law, which amends New York’s Pay Transparency Law (NYPTL) that will place New York among the growing number of states to require salary ranges with job advertisements.

The amendments – which reflect changes that Gov. Hochul requested in exchange for her approval of the law in December 2022 – go into effect September 17, 2023, the same as the original version of the law. In summary, the amendments modify the scope of jobs covered by the law, eliminate the law’s recordkeeping requirements, and provide a definition of “advertisements” under the law.

Background

The original version of the NYPTL 1326, which we reported on in a 2022 Alert, requires that when a covered employer advertises a job, promotion, or transfer opportunity that can or will be performed in New York State, at least in part, the employer must disclose the compensation or range of compensation. The law does not require that the employer create a job description, but if a job description exists, it must also be made available. Advertisements for commission-based jobs must merely include a general statement that the compensation structure is commission based.

Scope of Jobs Covered

The amendments both expand and contract the range of jobs covered by the NYPTL.

The original version of the NYPTL – much like New York City’s wage transparency law – appeared to apply to New York-based positions and fully remote positions as it covered jobs that “can or will be performed, at least in part, in the state of New York.” The amendment now limits the law to advertisements for “a job, promotion, or transfer opportunity that will physically be performed, at least in part, in the state of New York, including a job, promotion, or transfer opportunity that will physically be performed outside of New York but reports to a supervisor, office, or other worksite in New York.” In other words, hybrid jobs that will require some attendance in New York are covered.

The other category of jobs covered by the law is one that “will physically be performed outside of New York but reports to a supervisor, office, or other worksite in New York.” As such, employers should be cognizant of the reporting structure for a position when evaluating compliance with NYPTL requirements as well as the different standard under New York City’s law.

Elimination of Record Retention Requirements

The original bill imposed recordkeeping requirements on employers that include the history of compensation, ranges for each job, promotion, or transfer, and the job description for each position (to the degree they exist). The amendments eliminate this requirement. With that said, retaining such records may be required by other federal and state laws and regulations, and can be useful to employers in defending their compensation practices.

Definition of Advertisement

The original bill did not define “advertisement.” The amendments define an advertisement as follows: “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.” Otherwise stated, the NYPTL applies to both internal and external job listings.

Get Ready to Comply

As noted above, the law takes effect on September 17, 2023. Employers should analyze compensation information and job descriptions, review organizational charts and reporting requirements to determine whether a position reports to a supervisor, office or other worksite in New York, and evaluate the differences between New York’s law and other states where the employer operations.  Notably, the NYPTL does not supersede or preempt any provisions of local laws, rules, or regulations. Accordingly, employers that live in jurisdictions with already existing local laws in this area (e.g. New York City) will need to comply with both the state and local laws.

New York State Amends Warehouse Worker Protection Act

On March 3, 2023, Gov. Hochul signed Bill A1000/S851 into law. The bill is a “chapter amendment” and amends the Warehouse Worker Protection Act (WWPA), which we covered in a 2022 Alert. The new law makes significant changes to the WWPA as well as clarifications on the same.

Covered Employers and Employees

The chapter amendment clarifies that covered employees include non-exempt employees, who are covered by minimum wage laws, over-time laws, and New York State’s minimum wage orders. It also exempts from coverage drivers and couriers to or from a warehouse distribution center.

The WWPA continues to cover employers who employ 100 or more employees at a single warehouse distribution center, but modifies the threshold number of employees for employers with more than one warehouse distribution centers to include those with 1000 or more employees (instead of 500, as stated in the earlier version of the law).

The definition of “Warehouse Distribution Center” now includes an exemption for farm product warehousing and storage.

Employer Requirements

The chapter amendment indicates that covered employers must provide a written description of any quota in English and in the language identified as the primary language of the employee. The initial version of the WWPA included numerous specific record keeping requirements. That section has been replaced, and now employers are required to “preserve for three years contemporaneous, true, and accurate records to ensure compliance with employee or commissioner requests for data.”

Inspection of Records

The chapter amendment modifies the language relating to employee requests to their employer for quota information to now state that if a current or former employee believes that they have been disciplined as the result of failing to meet a quota, or that meeting a quota caused a violation of their right to a meal or rest period or use of bathroom facilities, including reasonable travel time to and from bathroom facilities, they have the right to request, and the employer shall provide, a written description of each quota to which the employee is subject, a copy of the most recent 90 days of the employee’s own personal work speed data, and a copy of the aggregate work speed data for similar employees at the same establishment for the same time period. A former employee is limited to making one request, and employers must respond to such requests no later than fourteen calendar days from the date of the request.

Retaliation

The “unlawful retaliation” section of the WWPA is reworked through the chapter amendment to provide a rebuttable presumption of unlawful retaliation if the employer takes an adverse employment action against an employee within 90 days of the employee exercising rights under the WWPA.

Further Guidance & Enforcement

The original version of the WWPA indicates that the New York Department of Labor “shall” adopt rules and regulations implementing the WWPA. Pursuant to the chapter amendment, the word “shall” has been replaced with “may,” meaning that the NY DOL may not necessarily provide any further guidance.

The chapter amendment also added a provision to state “[t]he civil penalties provided for in this section shall be in addition to and may be imposed concurrently with any other remedy or penalty provided for in this chapter.”

Employers covered by the WWPA should work with legal counsel to ensure compliance.

For more information or immediate guidance, contact:

• Joseph S. Brown
• Christopher P. Maugans
• Scott R. Green
• Caroline J. Berdzik
• Or another member of the Employment and Labor practice