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Pay Transparency Law for Employers
Sep 25, 2023
New York State’s Pay Transparency Law (New York State Labor Law Section 194-b) requires employers with four (4) or more employees to include a range of pay for all advertised job, promotion, or transfer opportunities. This fact sheet is intended to help employers navigate the new law and meet its requirements.
NYS PAY TRANSPARENCY LAW
- As of September 17, 2023, the New York State Pay Transparency Law requires all job, promotion or transfer opportunities advertised by an employer to include a salary, hourly rate, or range of pay.
- This law applies to employers with four (4) or more employees.
- This applies to all job, promotion or transfer opportunities that will be physically performed, at least in part, in New York State.
- The law also applies to opportunities performed outside New York State that report to a supervisor or office in New York State.
- Any remote or telecommuting opportunities that will report to a supervisor, office or worksite in the state of New York are covered by this law, regardless of whether the employee will be working from home outside New York State.
- If an employee’s physical presence in New York State is only for occasional work-related purposes, such as a meeting, a conference, or communicating with employees based in New York State, that would not be enough activity to be considered a job performed in New York State.
- Under this law, employers are prohibited from retaliating against employees who discuss their compensation with coworkers.
ADVERTISEMENTS COVERED BY THIS LAW
- Advertisements require a range of pay regardless of how or where they are posted.
- This law covers any job posting shared with more than one person and made available internally or to the public.
- Covered posting mediums include but are not limited to: newspaper ads, printed flyers, social media posts, website postings, anything sent to an electronic mailing list, and emails sent to a pool of more than one applicant.
- Opportunities are covered whether posted by the employer directly or on the employer’s behalf by a third-party such as through a job-listing website.
- Employers are not responsible for any postings that are re-posted or “scraped” by a third-party website without their consent.
- If an employer requires more space to include full range of pay information, they may post it in a separate location, as long as the information is still available free of charge and easily accessible. For instance, posting on social media with a link to the full job posting on the company’s website.
HOW TO DRAFT A PAY RANGE
- A pay range must include a minimum and maximum annual salary or hourly rate of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting.
- If the employer does not plan to offer a range, but instead plans to offer a single fixed rate, such as $30 an hour, the fixed rate must be listed.
- A pay range cannot be open-ended. For example, “$20+ an hour” is not allowed.
- A range of pay cannot include other forms of compensation or benefits such as employer provided insurance, paid leave or retirement savings. However, employers are encouraged to disclose such benefits separately.
- If compensation for an opportunity is completely commission based, employers must state that clearly when advertising the opportunity.
- The law specifies employers must make a good faith effort to determine range of pay.
GOOD FAITH EFFORT
- A good faith pay range is one that an employer legitimately believes they are willing to pay at the time of the advertisement’s posting.
- Employers should consider factors such as the job market, current employee pay levels, hiring budget and the experience/education levels they are willing to accept from the candidate in determining a good faith range of pay.
- An employer may adjust the range of pay in an advertisement after collecting additional information during the hiring process.
HOW TO DRAFT A POSTING FOR MULTIPLE LOCATIONS OR OPPORTUNITIES
- A range of pay must be for single opportunity and location/region.
- Postings that include multiple possible locations or multiple opportunities at different levels of seniority must include a separate pay range for each location or opportunity.
- For example, if an employer is using one post to seek three Plant Manager positions in three different counties, the employer must post a range for each location:
PLANT MANAGER LOCATION RANGE OF PAY
Westchester County $100,000 - $125,000
Erie County $75,000 - $90,000
Clinton County $75,000 - $90,000
TEMPORARY HELP FIRMS
- This law does not apply to temporary help firms seeking to hire workers to perform work or services for other organizations.
- Employers seeking to hire workers through a temporary help firm must include a range of pay.
- However, any advertisement for an opportunity to work directly for the temporary help firm, for instance as the Executive Director, must include a range of pay.
JOB DESCRIPTIONS
- All postings for a job, promotion or transfer opportunity must contain a job description when available.
- An employer must create a job description except in the limited circumstance where the title conveys the job duties.
- When the job title clearly conveys the duties for the job, for instance, dishwasher, a job description is not required.
WHAT THIS LAW DOES NOT DO
- This law does not require employers to create a posting for every available job, promotion, or transfer opportunity.
- This law does not require employers to use a specific medium for advertisements.
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On April 23, 2024, the U.S. Department of Labor (DOL) announced a final rule to amend current requirements employees in white-collar occupations must satisfy to qualify for an overtime exemption under the Fair Labor Standards Act (FLSA). The final rule will take effect on July 1, 2024. Increased Salary Level The FLSA white-collar exemptions apply to individuals in executive, administrative, professional, and some outside sales and computer-related occupations. Some highly compensated employees may also qualify for the FLSA white-collar overtime exemption. To qualify for this exemption, white-collar employees must satisfy the standard salary level test, among other criteria. This salary level is a wage threshold that white-collar employees must receive to qualify for the exemption. Starting July 1, 2024, the DOL’s final rule increases the standard salary level from: $684 to $844 per week ($35,568 to $43,888 per year); and $107,432 to $132,964 per year for highly compensated employees. On Jan. 1, 2025, the standard salary level will then increase from: $844 to $1,128 per week ($43,888 to $58,656 per year); and $132,964 to $151,164 per year for highly compensated employees. Automatic Updates The DOL’s final rule also includes mechanisms allowing the agency to automatically update the white-collar salary level thresholds without having to rely on the rulemaking process. Effective July 1, 2027, and every three years thereafter, the DOL will increase the standard salary level. The agency will apply up-to-date wage data to determine new salary levels. Impact on Employers The first salary level increase in July is expected to impact nearly 1 million workers, while the second increase in January is expected to affect approximately 3 million workers. Employers should become familiar with the final rule and evaluate what changes they may need to adopt to comply with the rule’s requirements. Legal challenges to the rule are anticipated, which may delay the final rule’s implementation.
The recently enacted New York budget for fiscal year 2024-25 includes provisions mandating paid prenatal leave for the state’s workers, beginning Jan. 1, 2025, and repealing the New York COVID-19 sick leave law, effective July 31, 2025. Paid Prenatal Personal Leave The budget amends the state sick leave law by adding what is being touted as a first-in-the-nation requirement that all employers provide their employees with 20 hours of paid prenatal personal leave per 52-week period, starting Jan. 1, 2025. The amendment does not require employees to accrue the new leave, nor does it impose a waiting period before employees may use the leave; the full 20 hours must be made available on Jan. 1, 2025. Employees on leave must be paid their regular rate of pay or minimum wage if the applicable minimum wage is higher; however, employers are not required to pay out unused prenatal personal leave when an employee separates from employment. Permitted Uses of Prenatal Personal Leave Prenatal personal leave may be taken for health care services received by an employee during their pregnancy or related to the pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy. The new provisions do not require advance notification or documentation after the fact for using leave. Interaction With Paid Sick Leave and FMLA Leave The new requirement is in addition to the annual sick leave the law already mandates, which ranges from 40-56 hours and may be paid or unpaid, depending on the employer’s size and income. The amendment does not indicate that the leave runs concurrently with any federal Family and Medical Leave Act (FMLA) leave taken for prenatal care, meaning the state prenatal personal leave would be in addition to any FMLA leave taken for this purpose. Sunset Date for COVID-19 Leave The budget also establishes July 31, 2025, as the expiration date for New York’s COVID-19 employee sick leave law . The law took effect at the beginning of the COVID-19 pandemic, on March 18, 2020, and requires leave of up to 14 days, depending on the size and income of the employer. As with the regular sick leave law, whether leave must be paid also depends on the size and income of the employer. The sunsetting of the law comes in the wake of expired states of emergency and changed recommendations for isolation and quarantine. Steps for Employers New York employers should prepare for the start of paid prenatal personal leave in January 2025 and watch for any agency regulations and guidance implementing the new leave entitlement. Employers should also train managers and supervisors about the new requirements and make sure employee policies and handbooks are up to date. Employers should continue to allow COVID-19 sick leave when it applies and keep in mind that other leave requirements, such as paid sick leave, may allow employees to take time off from work for illness, including COVID-19.
On April 23, 2024, the Federal Trade Commission (FTC) voted to issue a final rule that would ban noncompete agreements in virtually all employment relationships. The final rule has not yet been filed in the Federal Register, but is scheduled to take effect 120 days after such filing. Final Rule The final rule defines a noncompete clause as a term or condition of employment that prohibits a worker from, penalizes a worker for or functions to prevent a worker from: (i) Seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) Operating a business in the United States after the conclusion of the employment that includes the term or condition. Such terms or conditions include employee contracts or workplace policies, whether written or oral. Subject to very limited exceptions, the final rule provides that: The use of noncompete clauses will be banned as of the effective date; Any existing noncompete clauses (other than those entered into with senior executives) will be invalidated; Employers must notify all employees (other than senior executives whose existing noncompete agreements will remain enforceable) that their existing noncompete agreements will not be enforced. Currently, the enforceability of noncompete clauses is determined by state and local legislatures and courts. The FTC rule would instead govern the enforceability of noncompete clauses at the federal level and supersede any less restrictive state laws or judicial interpretations. Legal Challenges On April 24, 2024, the U.S. Chamber of Commerce sued the FTC, seeking to block the final rule. The complaint was filed in the U.S. District Court for the Eastern District of Texas and argues that the FTC lacks the authority to issue rules that define unfair methods of competition. Additional legal challenges are likely, so employers should monitor for updates and anticipate potential uncertainty in the coming months. Next Steps for Employers Employers may consider reviewing existing employee agreements or form agreements (such as new hire paperwork) to determine whether any contain noncompete clauses that would be invalidated under the rule. Employers may also begin preparing revisions to such agreements and consider whether to use alternatives to noncompete clauses (e.g., nondisclosure clauses) to protect competitive business information.
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From the Blog.
On April 23, 2024, the U.S. Department of Labor (DOL) announced a final rule to amend current requirements employees in white-collar occupations must satisfy to qualify for an overtime exemption under the Fair Labor Standards Act (FLSA). The final rule will take effect on July 1, 2024. Increased Salary Level The FLSA white-collar exemptions apply to individuals in executive, administrative, professional, and some outside sales and computer-related occupations. Some highly compensated employees may also qualify for the FLSA white-collar overtime exemption. To qualify for this exemption, white-collar employees must satisfy the standard salary level test, among other criteria. This salary level is a wage threshold that white-collar employees must receive to qualify for the exemption. Starting July 1, 2024, the DOL’s final rule increases the standard salary level from: $684 to $844 per week ($35,568 to $43,888 per year); and $107,432 to $132,964 per year for highly compensated employees. On Jan. 1, 2025, the standard salary level will then increase from: $844 to $1,128 per week ($43,888 to $58,656 per year); and $132,964 to $151,164 per year for highly compensated employees. Automatic Updates The DOL’s final rule also includes mechanisms allowing the agency to automatically update the white-collar salary level thresholds without having to rely on the rulemaking process. Effective July 1, 2027, and every three years thereafter, the DOL will increase the standard salary level. The agency will apply up-to-date wage data to determine new salary levels. Impact on Employers The first salary level increase in July is expected to impact nearly 1 million workers, while the second increase in January is expected to affect approximately 3 million workers. Employers should become familiar with the final rule and evaluate what changes they may need to adopt to comply with the rule’s requirements. Legal challenges to the rule are anticipated, which may delay the final rule’s implementation.
The recently enacted New York budget for fiscal year 2024-25 includes provisions mandating paid prenatal leave for the state’s workers, beginning Jan. 1, 2025, and repealing the New York COVID-19 sick leave law, effective July 31, 2025. Paid Prenatal Personal Leave The budget amends the state sick leave law by adding what is being touted as a first-in-the-nation requirement that all employers provide their employees with 20 hours of paid prenatal personal leave per 52-week period, starting Jan. 1, 2025. The amendment does not require employees to accrue the new leave, nor does it impose a waiting period before employees may use the leave; the full 20 hours must be made available on Jan. 1, 2025. Employees on leave must be paid their regular rate of pay or minimum wage if the applicable minimum wage is higher; however, employers are not required to pay out unused prenatal personal leave when an employee separates from employment. Permitted Uses of Prenatal Personal Leave Prenatal personal leave may be taken for health care services received by an employee during their pregnancy or related to the pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy. The new provisions do not require advance notification or documentation after the fact for using leave. Interaction With Paid Sick Leave and FMLA Leave The new requirement is in addition to the annual sick leave the law already mandates, which ranges from 40-56 hours and may be paid or unpaid, depending on the employer’s size and income. The amendment does not indicate that the leave runs concurrently with any federal Family and Medical Leave Act (FMLA) leave taken for prenatal care, meaning the state prenatal personal leave would be in addition to any FMLA leave taken for this purpose. Sunset Date for COVID-19 Leave The budget also establishes July 31, 2025, as the expiration date for New York’s COVID-19 employee sick leave law . The law took effect at the beginning of the COVID-19 pandemic, on March 18, 2020, and requires leave of up to 14 days, depending on the size and income of the employer. As with the regular sick leave law, whether leave must be paid also depends on the size and income of the employer. The sunsetting of the law comes in the wake of expired states of emergency and changed recommendations for isolation and quarantine. Steps for Employers New York employers should prepare for the start of paid prenatal personal leave in January 2025 and watch for any agency regulations and guidance implementing the new leave entitlement. Employers should also train managers and supervisors about the new requirements and make sure employee policies and handbooks are up to date. Employers should continue to allow COVID-19 sick leave when it applies and keep in mind that other leave requirements, such as paid sick leave, may allow employees to take time off from work for illness, including COVID-19.
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