Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On December 15, 2021, the full city council approved a bill that would amend the New York City Human Rights Law in a way that would fundamentally alter the way job advertisements are posted. The mayor has expressed support for the bill, and he is expected to sign it into law.
The bill provides that it is an unlawful discriminatory practice for an employer of four or more people (including independent contractors), or employment agencies, to advertise for a job without identifying the minimum and maximum salary for that position. The bill further provides that the requirement to post minimum and maximum potential salaries applies to internal job postings within an organization as well as to opportunities for promotions or transfers within a company. The bill further provides that in determining the minimum and maximum salaries the employer must use good faith to determine, at the time of the job posting, what it would pay for the advertised job, promotion or job opportunity.
The one exclusion in coverage is that temporary help firms are not covered. Temporary help firms are defined as businesses that recruit and hire their own employees, and assign those employees to perform work at or perform services for other organizations, to support or supplement the other organization's workforce, or to provide assistance in special work situations such as, but not limited to, employee absences, skill shortages, seasonal workloads, or to perform special assignments or projects.
According to the legislative history, the purpose of this law is to further New York City’s effort at achieving pay equity. Section 8-107(1) of the New York City Administrative Code already contains provisions that protect against unequal treatment in the terms and conditions of employment, including compensation. Furthermore, in 2017, Section 8-107(25) of the New York City Administrative Code was amended to prohibit employers from inquiring into employees’ or applicants’ salary histories. Despite these protections, however, the New York City Commission on Human Rights believes that discrimination in pay rates can be difficult to detect because employees are often hesitant to share salary information with colleagues, and therefore many employees may not realize they are being compensated at lower rates than paid to others for comparable work.
This amendment to the New York City Human Rights Law would take effect 120 days after it becomes law (which has not happened yet). The bill grants the New York City Commission on Human Rights the ability to delay the effective date of the law if it determines that rules and regulations are necessary to clarify elements of the law.
For now, employers should begin preparing for the effective date of this law by communicating with human resources and any group responsible for posting job advertisements to inform them of the new requirements. Furthermore, steps should be taken to begin documenting internal “good-faith” discussions to show how minimum and maximum salary levels are determined. Keeping records of these deliberations will be important to help defend against any claims initiated by either the New York City Commission on Human Rights or applicants for positions.
At the present, it is not clear whether this bill can withstand a constitutional challenge for compelling commercial speech. Also, it is not yet clear whether the requirements in this bill apply to any job postings that are disseminated within New York City or whether the requirements apply only for jobs where the work will be performed in New York City. We expect the rules that are likely to be promulgated will clarify these and other issues.