New Rules on Wage Transparency

Change is in the air. The way co-op and condo boards advertise job openings, recruit applicants and promote employees has just undergone a radical change. As of November 2022, all New York City employers with four or more employees must include a “good faith” salary range for every job, transfer and promotion opportunity that they advertise. As long as one of the employees works in New York City, the workplace is covered by this law. Covered employers must adhere to this law when advertising jobs that are performed either remotely or at the building itself.

The law governs advertisements for full- or part-time employees and for independent contractors. Ads are defined as any written descriptions of available jobs, promotions or transfers in any medium — from an internet posting to a flyer on a bulletin board. But the law does not require employers to create a written ad in order to hire for a job, nor does it prohibit hiring without using a written ad.

Good faith required. Information in a covered advertisement must include a “good faith” minimum and maximum salary range. “Good faith” means what an employer honestly believes it will pay the successful job applicant. A salary includes an hourly or annual rate of pay — “$15 an hour” or “$50,000 per year.” Salary does not include overtime pay, insurance, paid sick or vacation days or other forms of remuneration, such as tips or bonuses.

Be aware that open-ended salary ranges are not sufficient. For example, an advertisement that states a job will pay a “maximum of $30,000 a year” or “$15 an hour and up” does not satisfy the new requirements.

Fines are stiff. Employers who violate the new law may have to pay monetary damages to affected applicants and amend future advertisements. If an employer cures a first violation of this law within 30 days of receiving a notice of violation from the New York City Commission on Human Rights, it will not have to pay a civil penalty. But if an employer does not cure, it may have to pay a civil penalty of up to $250,000 for each uncured violation.

Westchester follows suit. A similar law went into effect in Westchester County at the same time. It also covers employers with four or more employees and requires them to post the lowest to highest salary for any given position in a written advertisement. It covers jobs that are required to be performed in Westchester County, whether remotely or at a building itself.

But the Westchester County law, unlike the New York City law, does have an exception. If a Westchester County employer is accepting job applicants without reference to a specific position — such as a “Help Wanted” sign — it does not have to comply with the new law.

A new state law may follow. Finally, co-op and condo boards should also be aware of a bill that has passed the state Legislature and is awaiting Gov. Kathy Hochul’s signature. The New York State bill is similar to the New York City law. It does, however, allow an employer to provide a fixed salary for a job, and it mandates that the posting must include a job description. The bill also requires that employers keep records of salary compensation for each position.

The New York State bill also has an anti-retaliation provision that punishes an employer for refusing to interview, hire or promote an applicant or employee who exercises his or her right to report a potential violation. Civil penalties range from $1,000 for the first violation to $2,000 for the second and $3,000 for the third and all subsequent violations. That bill will become law 270 days after the governor’s signs it.

Andrew I. Bart is an attorney at Borah, Goldstein, Altschuler, Nahins & Goidel.