Key Takeaways:

• On September 13, 2023, the NY DOL released proposed pay transparency regulations.

• The proposed regulations seek to clarify the new requirement that employers post the range of compensation in job postings.

• The NY DOL will accept comments on the proposed regulations until November 12, 2023.

As we previously reported, on December 21, 2022, Gov. Hochul signed a bill into law creating New York Labor Law Section 194-b, requiring that the range of compensation be posted in job postings. The law was amended on March 3, 2023, and went into effect on September 17, 2023.

On the eve of the law’s effective date, the New York State Department of Labor has issued proposed regulations, which are subject to a 60-day comment period, expiring on November 12, 2023.

Some of the more notable portions in the proposed rule include the following:

• Employers will not be deemed responsible for advertisements that are “scraped,” or automatically aggregated electronically and posted by a third-party without their knowledge or consent.
• The law does not prohibit employers from hiring, promoting, or transferring employees without posting an advertisement, nor does it require employers to create an advertisement to hire, promote, or transfer employees.
• The law does not require employers to use any specific medium for posting advertisements.
• The “range of compensation” solely means the base rate of pay, regardless of the frequency of payment; for example, an annual salary, an hourly wage, or a piece rate. Such range must be for a single opportunity and a single geographic location or region. If an advertisement for an opportunity is intended to cover multiple geographic locations or intended to include multiple levels of seniority or supervisory authority, then multiple ranges of compensation for each individual opportunity must be provided.
• The range of compensation does not include other forms of compensation or benefits offered in connection with the opportunity, such as: (1) health, life, or other employer-provided insurance; (2) paid or unpaid time off, sick days, vacation days, leaves of absence, or sabbaticals; (3) the availability of, or contributions towards, employer-sponsored retirement or savings plans; (4) severance pay; (5) overtime pay; or 6) other forms of compensation such as commissions, tips, bonuses, stocks, or the value of employer-provided meals or lodging.
• Employers are not prohibited from providing additional relevant compensation or benefit information beyond the requirements of the Act and this section, but employers are prohibited from including other forms of compensation such as tips in the range of compensation itself, as it fails to disclose the base rate of pay.
• The range of compensation must include the minimum and maximum annual salary, or hourly rate, for an opportunity that the employer believes in good faith to be accurate at the time of the posting of an advertisement for such opportunity.
• “Good faith” means the range of compensation the employer legitimately believes it is willing to pay the successful applicant or employee at the time they post an advertisement, and is based on the time that the employer posts the advertisement.
• The proposed regulations also provide examples where employers will be deemed to have lacked “good faith.”

Employers are advised to take these proposed regulations into consideration when drafting job postings and to submit any comments they may have to the NY DOL for their consideration before a final regulation is issued.

For more information or immediate guidance, contact:

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