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Employer Update: Pregnant Workers Fairness Act and PUMP Act

Posted: May 30th, 2023

The Pregnant Workers Fairness Act was signed into law by the President in December 2022, and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act was adopted along with it. Recent federal publications have outlined some employer responsibilities with respect to each.

As of June 27, 2023, employers will have to provide pregnant employees with protections similar to those provided under the Americans with Disabilities Act (“ADA”). Employers with 15 or more employees will have to make reasonable accommodations, so long as there is no undue hardship on business operations, for known limitations related to pregnancy, childbirth, or related medical conditions. Like any request made under the ADA, an interactive process between the employer and employee must occur, and FAQs issued by the Equal Employment Opportunity Commission (“EEOC”) provide some guidance on what accommodations may be required, such as:

Allowing an employee to sit or drink water;
Providing closer parking;
Flexible hours;
Additional break time to use the bathroom, eat, and rest; and/or
Restructuring of duties to avoid strenuous activities and/or activities not safe for pregnancy.[1]

Additionally, a recent U.S. Department of Labor Wage and Hour Division bulletin[2] provides parameters related to the potential enforcement of the PUMP Act.

Specifically, the agency-directed guidance provides:

Employees are entitled to breaks every time they need to pump, and employers cannot mandate adherence to a schedule. The needs of the employee take precedence, and the frequency and length of each break may vary as a result. Whether or not the breaks are paid depends on, among other things, other federal, state, and local laws.

Employees must have access to a space for pumping that is shielded from view, free from intrusion by any person, available when needed, and not a bathroom. The space must have a place for the nursing employee to sit, a flat surface (that is not the floor) for placement of the pump and, if possible, an electrical outlet for an employee to use to plug in a pump and a sink for washing up. Employees must be able to safely store milk in an insulated food container, personal cooler, or refrigerator.

The updated Fair Labor Standards Act Poster should be utilized (as it contains new PUMP at Work information).[3]

Employers with fewer than 50 U.S. employees may be exempt from these requirements if they can show an undue hardship in compliance (looking at expense, financial resources, nature, and structure of the employer’s business).

Of course, as with the enforcement of all employee rights, there can be no retaliation against an employee who engages in pumping activity or requests an accommodation related to pregnancy or childbirth.

New York State has its own laws related to employees’ rights during and after childbirth, with which employers in New York must comply, including the right to express breast milk with access to a specific, designated room for such.[4]

We are here to help. Please contact us with any questions.

[1] See: https://www.eeoc.gov/pregnancy-discrimination

[2] Field Assistance Bulletin No. 2023-02: www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf

[3] See: https://www.dol.gov/agencies/whd/posters/flsa.

[4] See: https://dol.ny.gov/system/files/documents/2023/03/ls702.pdf.

California Privacy Rights Guide for New York Business Owners

Posted: May 4th, 2023

By: Vincent Costa, Esq. email

Tags: corporate, cybersecurity

In California, the California Privacy Rights Act (CPRA) is the latest amendment to California’s consumer privacy law, the California Consumer Privacy Act (CCPA). The CPRA provides consumers with additional rights. As a New York business owner, what do you need to know?

What is the CCPA and the CPRA?

The CCPA “gives consumers more control over the personal information that business[es] collect about them and the CCPA regulations provide guidance on how to implement the law.”[1] The CCPA, which went into effect in January 2020, created “an array of consumer privacy rights and business obligations with regard to the collection and sale of personal information.”[2]

In 2020, California voters approved the California Privacy Rights Act (CPRA). The CPRA amended the CCPA adding new privacy protections, amongst other things.

The protections, which became effective in January 2023, give consumers new rights in addition to those provided in the original CCPA, such as: (1) the right to correct inaccurate personal information that a business has about them, and (2) the right to limit the use and disclosure of sensitive personal information collected about them.[3] The CPRA defines “sensitive personal information” as:

Government identifiers, including Social Security numbers and driver’s licenses;
Account log-in, financial account, debit card, or credit card number with any required security code, password, or credentials allowing access to an account;
Precise geolocation;
Contents of mail, email, and text messages;
Genetic data;
Biometric information processed to identify a consumer;
Information concerning a consumer’s health, sex life, or sexual orientation; or
Information about racial or ethnic origin, religious or philosophical beliefs, or union membership.

Further, the CPRA creates a dedicated agency that has the power to investigate, enforce, and create rules. Additionally, there is no cure period under the CPRA. Therefore, businesses do not get the benefit of being notified of a violation before enforcement.

Who is subject to the CPRA?

The CPRA applies to “businesses” that collect personal information of California residents. The specific definition of “businesses” is:

A for-profit legal entity that
- collects consumers’ personal information, or on the behalf of which such information is collected,
- that does business in the State of California,
- and satisfies one or more of the following thresholds:
  - Has a gross revenue in excess of $25 million,
  - Buys, sells, or shares the personal information of 100,000 or more consumers or households, or
  - Derives 50% or more of its annual revenues from selling or sharing consumers’ personal information.

What responsibilities do businesses subject to the CPRA and CCPA have?

Businesses that are subject to the CCPA and CPRA must do several things, including:

Notify consumers of their rights,
Comply with all regulations regarding the consumer rights,
Fulfill disclosure and retention obligations,
Facilitate consumer’s requests regarding their rights, and
Implement security safeguards.[4]

Please contact us for more detailed guidance or with any questions.

Thank you to Joseph Townsend for his research and writing assistance.

[1]California Consumer Privacy Act (CCPA), State of Cal. Dep’t of Just. Off. of the Att’y Gen. (Feb. 15, 2023), https://oag.ca.gov/privacy/ccpa.

[2] CCPA vs CPRA: What’s the Difference?, Bloomberg L. (Jan. 23, 2023), https://pro.bloomberglaw.com/brief/the-far-reaching-implications-of-the-california-consumer-privacy-act-ccpa/.

[3] Id.

[4] Id.

New York State Amends Pay Transparency Law

Posted: April 18th, 2023

By: Zachary Mike, Esq. email

Tags: labor & employment

As CMM’s legal blog has explored, New York State enacted the New York Pay Transparency Law (the “Law”), which requires most New York employers to provide salary ranges for all advertised jobs and promotions in New York State, effective as of September 17, 2023. However, Governor Kathy Hochul recently signed an amendment to the Law (the “Amendment”)[1] that changes it in three major ways:

1. What constitutes a job “performed” in New York

Previously, the Law simply stated that the advertisement requirements would apply to any position that “can or will be performed in the state of New York.” Now, the Amendment explains that the Law does not apply to jobs solely because they “can” hypothetically be performed in New York. Instead, covered advertisements for jobs, promotions, or transfer opportunities will be those that:

“will physically be performed, at least in part, in the state of New York”; and
“will physically be performed outside of New York but reports to a supervisor, office, or other work site in New York.”

Essentially, the Law will apply to jobs where the employee will be physically located in New York in some capacity (whether full-time or as part of hybrid work), as well as to those who would be out-of-state employees, but report to a supervising contact of the covered employer who is physically located within the jurisdiction of New York State, similar to the New York City Pay Transparency Law.

2. Elimination of Recordkeeping Obligations

Furthermore, the Amendment wholly eliminates the Law’s recordkeeping requirement regarding the “history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions,” if they exist. While the Amendment has abolished this obligation, covered employers should consider maintaining such compensation records to ensure best practices.

3. Defining the Term “Advertise”

Lastly, the Amendment clarifies the previous ambiguity in the Law to provide a more concrete statutory definition of the term “advertise,” which is now defined as “mak[ing] available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.” Therefore, the Amendment confirms that the Law’s salary disclosure requirement applies to both internal and external written job postings and is thus silent on word-of-mouth/verbal communications.

Please contact us for guidance or with any questions.

[1] Senate Bill S1326; https://www.nysenate.gov/legislation/bills/2023/s1326.

FTC Proposes Rule Barring Noncompete Agreements: What Employers Need to Know

Posted: March 7th, 2023

By: Vincent Costa, Esq. email, Marc Saracino, Esq. email

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed a far-reaching rule that would bar employers in the United States from imposing noncompete agreements on their employees. If adopted, this new rule would effectively make noncompete agreements a thing of the past, causing employers to seek alternative methods to protect themselves. As a business owner, what do you need to know?

What does the proposed rule ban?

Under the FTC’s proposed rule, a non-compete clause would be defined as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”

The proposed rule would entirely prohibit employers from requiring employees to sign a non-compete agreement. In addition, the proposed rule would also require employers to rescind existing non-compete agreements. The rule would require an employer that rescinds a non-compete clause to provide notice to the worker that the non-compete clause is no longer effective and cannot be enforced against them.

Accordingly, the FTC’s proposed rule would make it illegal for an employer to:

Enter into or attempt to enter into a noncompete with an employee;
Maintain a noncompete with a worker; or
Represent to a worker under certain circumstances that the worker is subject to a noncompete.[1]

Are there any exceptions to the proposed rule?

The proposed rule contains a narrow exception for when an individual is selling a business. For this exception to apply:

the owner, member, or partner subject to the non-compete agreement must hold at least a 25 percent ownership interest in the business entity at the time they entered into the non-complete clause, and
be selling either their ownership interest or substantially all of the business entity’s assets.

When would this rule go into effect?

The FTC is currently accepting public comments on the proposed rule, which can be submitted here. The FTC voted to extend the public comment period until April 19, 2023. The original deadline for submitting comments was March 20. Once the comment period is closed, the FTC will review the comments and make any changes they deem necessary, then move to make the rule final. If the rule is finalized, it will go into effect 180 days after the final version is published.

Is the rule expected to face legal challenges?

It is anticipated that the proposed rule will the be the subject of legal challenges. Coinciding with the FTC’s recent statement which “restore[d] the agency’s policy of rigorously enforcing the Federal Ban on unfair methods of competition,”[2] the FTC has utilized Section 5 of the Federal Trade Commission Act as its justification for the proposed rule. While Section 5 does allow the FTC to regulate “unfair methods of competition,” this section has historically been utilized by the FTC on a case-by-case basis. Here, the FTC is attempting to use Section 5 for the creation of a broad rule that will impact employers across the country. Accordingly, it can be expected that the proposed rule will be challenged by employers arguing that the FTC overstepped its authority in the creation of the rule. Further, a dissenting member of the FTC provided various ways that the proposed rule will be challenged.[3]

How would the rule be enforced?

If the proposed rule is finalized and takes effect, the FTC can enforce the rule by issuing a complaint in situations in which it believes it has been violated.[4] The respondent may either elect to settle or contest the charges. If contested, the complaint is adjudicated in front of an administrative law judge (“ALJ”). Once the adjudication is concluded, the ALJ will issue an “initial decision” setting forth their findings, and recommending either entry of an order to cease and desist or a dismissal of the complaint, which either party may appeal. If the order is finalized and violated, the FTC may seek several remedies in court including civil penalties, injunctions, and such other and further equitable relief as deemed appropriate.

What can you do as a business owner?

Although the proposed rule would likely do away with non-compete agreements, there are other tools a business owner can use to protect their goodwill, confidential information, and other business relationship and interests. Please contact us for more information and guidance.

For additional information visit:
https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition

The authors would like to acknowledge Joseph Townsend for his research and writing assistance.

[1] FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, Federal Trade Commission (Jan. 5, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition.

[2] FTC Restores Rigorous Enforcement of Law Banning Unfair Methods of Competition, Federal Trade Commission (Nov. 10, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/11/ftc-restores-rigorous-enforcement-law-banning-unfair-methods-competition.

[3] Dissenting Statement of Commissioner Christine S. Wilson Regarding the Notice of Proposed Rulemaking for the Non-Compete Clause Rule, Federal Trade Commission (Jan. 5, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p201000noncompetewilsondissent.pdf.

[4] A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and Rulemaking Authority, Federal Trade Commission (May 2021), https://www.ftc.gov/about-ftc/mission/enforcement-authority.

New York State Enacts Pay Transparency Law: What Employers Need to Know

Posted: January 25th, 2023

By: Zachary Mike, Esq. email

Tags: labor & employment

Update: For the most recent information on the Pay Transparency Law, follow this link:
New York State Amends Pay Transparency Law

By now, you may have heard that starting later this year, job postings in New York State must include a salary range. What does this mean for your business? Read on for what employers need to know concerning this new law.

What is the new Pay Transparency Law?

On December 22, 2022, New York Governor Kathy Hochul signed into law the New York Pay Transparency Law[1] (the “Law”), which takes effect September 18, 2023. The Law amends New York Labor Law[2] to require most private sector New York employers to provide salary ranges for all advertised jobs and promotions in New York State. Similar requirements enacted in 2022 already apply to employers who operate in New York City. Nevertheless, the Law includes some significant differences from the New York City law and others that employers should be aware of.

Essentially, the Law requires employers of four or more employees[3] advertising a job, promotion, or transfer opportunity to disclose the “compensation or a range of compensation for such job, promotion, or transfer opportunity” in the job posting. The “range of compensation” is defined as “the minimum and maximum annual salary or hourly range 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.”

The Law applies to jobs that can or will be performed, at least in part, in the state of New York. Therefore, depending on forthcoming guidance from the New York Department of Labor, the Law could be construed broadly enough to apply to out-of-state employers that have employees performing work in New York State. (Note that the Law does not apply to temporary help firms that assign employees to other employers for short-term projects or seasonal work, since such firms are already required to provide wage range information in compliance with the New York State Wage Theft Prevention Act.)

How is the Pay Transparency Law different from similar laws already enacted throughout New York State?

The first notable difference from the New York City law is that the Law requires employers to keep and maintain records of the posted salary ranges for at least six years, beginning on the effective date (September 18, 2023). Such records must demonstrate “the history of compensation range for each job, promotion, or transfer opportunity and the job descriptions for such positions, if such descriptions exist.”

The other prominent feature of the Law is that in addition to the salary range, it requires employers to include a “job description for [a] job, promotion, or transfer opportunity, if such description exists” in any advertisement for a job, promotion, or transfer opportunity in New York State. There are currently no parameters that define “job description,” but employers should ensure that covered postings include and disclose any pre-existing job descriptions relating to the job being posted if they do indeed exist.

Unlike the limited private right of action under the New York City law, there is no right to file a private cause of action for alleged violations of the state law. Instead, aggrieved individuals may file a complaint with the New York State Commissioner of Labor. Failure to comply with the Law can result in civil penalties of up to $1,000 for a first violation, $2,000 for a second violation, and $3,000.00 for a third or subsequent violation. We will continue to monitor any additional rules and regulations promulgated by the New York Department of Labor.

Please contact us for guidance or with any questions.

For additional information, please visit:

https://www.nysenate.gov/legislation/bills/2021/S9427

[1] S.9427/A.10477

[2] §194-b

[3] The Law also applies to employment agencies and the employees and agents of employers and employment agencies.

Does Your Business Use Third-Party Payment Apps? What You Need to Know About the Changes to IRS Form 1099-K

Posted: January 17th, 2023

By: Zachary Mike, Esq. email

Tags: corporate

Many small businesses often use third-party payment processors such as PayPal, CashApp, or Venmo to facilitate a frictionless payment experience for goods and services that can be made right from a customer’s smartphone. However, due to recent changes in the law, anyone who receives $600.00 or more as payment for goods and services using any of these payment apps can expect to receive a Form 1099-K.

Form 1099-K, Payment Card and Third Party Network Transactions, is a federal informational tax form used to report payments for goods and services to the Internal Revenue Service (“IRS”). Organizations that facilitate these payments, like debit or credit card companies, PayPal, Venmo, and others, are required by law to file Form 1099-K with the IRS and send copies of them to the payment recipient. The Form 1099-K may include amounts considered to be both included and/or excluded from gross income for federal tax purposes.

Previously, the IRS only required this level of reporting if payments exceeded $20,000.00 or more and over 200 transactions were completed during the year. While that reporting is still required, the new lower tax reporting requirement is a result of a change to the tax code in the American Rescue Plan Act, the $1.9 trillion stimulus package passed by Congress and signed into law March 2021. Beginning January 1, 2023, a payment settlement entity (“PSE”) such as Venmo is required to file and send its users a Form 1099-K for transactions made during the 2023 tax year. A PSE is defined by the IRS as “a domestic or foreign entity that…has the contractual obligation to make payment to participating payees in settlement of payment card transactions.”

The IRS said these changes also extend to people who sell items on internet auction sites such as eBay, and even people who run a “craft business” if they accept credit card payments through these apps. To comply with the new requirements, PayPal and Venmo have offered its users a way to tag their peer-to-peer transactions as either (1) personal, for friends and family, or (2) for Goods and Services. For example, users should select the appropriate category of “Goods and Services” whenever they are sending money to another user to purchase an item or paying for a service.

According to the IRS, these PSEs must then file the Form 1099-K for payments made in settlement of reportable payment transactions for each calendar year, which will then be sent to applicable individuals for income received through electronic forms of payments. PSEs may also request additional information from payment recipients, such as an Employment Identification Number (EIN) or Social Security Number (SSN) to properly report transactions on the Form 1099-K. If any of the payments are incorrectly labelled, payment recipients can contact the PSE directly for assistance. For instance, if the payment recipient reports their business income on a Form 1120, 1120S or 1065 and receives a Form 1099-K in their personal name as an individual (showing a SSN), contact the PSE listed on the Form 1099-K to request a corrected Form 1099-K showing the business’s EIN.

Recently, the IRS announced that calendar year 2022 will now be regarded as a transition period for purposes of IRS enforcement and administration of the third party network transactions. As a result of this delay, third-party settlement organizations will not be required to report tax year 2022 transactions on a Form 1099-K to the IRS or the payee for the lower, $600 threshold amount enacted as part of the American Rescue Plan of 2021.Instead, payment recipients will be required to report such earnings for the 2023 tax year during the 2024 tax season. To issue the Form 1099-K by mail or electronically by January 31, 2024, all tax information should be confirmed with the PSE by December 31, 2023. The sooner the confirmation, the sooner the payment recipient will be able to send, spend, and withdraw money from any payments that might be on hold.

With the new reporting requirements approaching, it is important for payment recipients to keep accurate records, such as receipts and bank statements, and be prepared to determine whether the information reflected on the Form 1099-K is taxable or non-taxable income.

This article is for informational purposes only. For tax advice or guidance, please consult your accountant directly.

Please contact us with any questions.

For additional information, please consult these sources:

https://help.venmo.com/hc/en-us/articles/4407389460499-2022-Tax-FAQ

https://www.irs.gov/forms-pubs/about-form-1099-k

https://www.irs.gov/instructions/i1099k

https://content.govdelivery.com/accounts/USIRS/bulletins/33f1ba9?reqfrom=share/

https://www.irs.gov/pub/irs-drop/n-2023-10.pdf

https://www.forbes.com/advisor/taxes/cash-apps-to-report-payments-of-600-or-more/

https://www.nbcnews.com/news/venmo-paypal-zelle-must-report-600-transactions-irs-rcna11260

2023 Changes to New York State Paid Family Leave

Posted: December 27th, 2022

By: Zachary Mike, Esq. email

Tags: labor & employment

Beginning January 1, 2023, the amount of weekly benefits and eligible family members under the New York State Paid Family Leave Act (PFLA) will change. The PFLA, which took effect in 2018, provides eligible employees with up to 12 weeks of job-protected, paid time off to bond with a child, care for a sick family member, or assist family when a service member is deployed abroad. The time can be taken all at once or in increments of full days.

Currently, the list of family members for whom eligible workers can take Paid Family Leave to care for includes spouses, domestic partners, children, step-children, parents, step-parents, parent-in-laws, grandparents, and grandchildren. These family members can live outside of New York State, and even outside of the country. Under the new changes, this list will be expanded to include biological siblings, adopted siblings, stepsiblings, and half-siblings.

Employees taking Paid Family Leave receive 67% of their average weekly wage, up to a cap of 67% of the current New York State Average Weekly Wage (NYSAWW). For 2023, the NYSAWW is $1,688.19, which means the maximum weekly benefit is $1,131.08. This is $62.72 more than the maximum weekly benefit for 2022.

New York State Paid Family Leave is essentially a type of insurance that may be funded by employees through payroll deductions. Although benefits are expanding to cover more family members this upcoming year, the contribution rate has gone down. For 2023, employees will contribute 0.455% of their gross wages per pay period. The maximum annual contribution for 2023 is $399.43, being $24.28 less than 2022. Employees earning less than the current NYSAWW of $1,688.19 will contribute less than the annual cap of $399.43, consistent with their actual wages.

Employers should confirm their 2023 Paid Family Leave premiums with their insurance carriers and coordinate with their payroll providers to make sure that the 2023 payroll will include the correct contribution rates. Written employment policy documents will also need to be updated if they include the specific PFLA benefit or deduction levels.

If you have questions about the PFLA, please contact us.

2023 Changes to Minimum Wage and Overtime Exempt Salary Threshold

Posted: November 14th, 2022

By: Vincent Costa, Esq. email, Zachary Mike, Esq. email

Tags: labor & employment

As the end of the year approaches, it is important to remind New York State employers and employees of the increased minimum wages that affect both hourly and salaried employees.

For hourly, non-exempt workers, please see the chart below for basic hourly minimum wage increases that go into effect as of December 31, 2022:

Minimum Wage Increase

Geographic Location/Increase from 2022	2023 Rate
NYC	$15.00 per hour (no change)
Nassau, Suffolk, & Westchester	$15.00 per hour (no change)
Remainder of New York State	$14.20 per hour

To the extent your business pays basic minimum wage, it is important to make sure that the increased wages are reflected as of December 31, 2022.

Tip Credit

New York State also allows employers in certain industries to satisfy the minimum wage by combining a cash wage paid by the employer plus a credit for tips the employee receives from customers. The minimum hourly rates New York employers must pay most tipped employees go into effect as of December 31, 2022:

Service Employees

Geographic Location	2023 Rate/Tip Credit
NYC	$12.50 / $2.50 (no change)
Nassau, Suffolk, & Westchester	$12.50 / $2.50 (no change)
Remainder of New York State	$11.85/ $2.35

Food Service Employees

Geographic Location	2023 Rate/Tip Credit
NYC	$10.00 / $5.00 (no change)
Nassau, Suffolk, & Westchester	$10.00 / $5.00 (no change)
Remainder of New York State	$9.45/ $4.75

The “tip credit” rules can be difficult to follow, so it is important to track this information to ensure that tipped employees are receiving at least basic minimum wage, inclusive of tips, when calculating wages.

Increased Salary Threshold for Overtime Exemption

Finally, there are increases in the minimum salary threshold that must be met for exempt employees. As of December 31, 2022, the following minimum salaries must be paid for exempt administrative and executive employees:

Geographic Location	2023 Salary Threshold
NYC	$1,125.00 per week ($58,500.00 annually) (no change)
Nassau, Suffolk, & Westchester	$1,125.00 per week ($58,500.00 annually) (no change)
Remainder of New York State	$1,064.25 per week ($55,341.00 annually)

With the upcoming changes, it is important to update policies and pay practices to stay in compliance. If you have a question about minimum wage, overtime, or wage and hour exemptions, please contact us or call (631) 738-9100.

What Employers Need to Know About New York City’s “Salary Transparency Law”

Posted: November 8th, 2022

By: Vincent Costa, Esq. email, Zachary Mike, Esq. email

Tags: labor & employment

As of November 1, 2022, all employers advertising jobs in New York City are now required under the Salary Transparency Law (“Law”) to include a good faith salary range for every job, promotion, and transfer opportunity advertised. This new law, which amends the New York City Human Rights Law (NYCHRL) and is enforced by the New York City Commission on Human Rights (NYCCHR), subjects employers advertising jobs in New York City to a series of additional requirements when posting job advertisements.

What is the Salary Transparency Law?

It is now considered an unlawful discriminatory practice in New York City to advertise a job, promotion, or transfer opportunity without including in the advertisement the employer’s good faith minimum and maximum range of base salary or wage the employer believes at the time of the posting it would pay for the advertised position. Similar legislation is currently pending in the New York State legislature.

Who is covered by the Law?

(i) Employment agencies, regardless of their size, and (ii) all employers with four or more employees or one or more domestic workers are covered by the Law, as long as at least one of the employees works in New York City.
The four employees do not need to work in the same location, and they do not need to all work in New York City.
The Law also applies to postings for either fully remote or hybrid positions, if the position can or will be performed in New York City, in whole or in part, whether from an office, in the field, or remotely from the employee’s home.

What kind of job postings are covered?

An “advertisement” is broadly defined to capture any written description of an available job, promotion, or transfer opportunity that is publicized to potential applicants, regardless of the method of dissemination. For example, “covered listings” of advertisements include, but are not limited to, postings on internal bulletin boards, internet advertisements such as on LinkedIn and ZipRecruiter, printed flyers, and newspaper advertisements.
The Law not only covers advertisements that seek full- or part-time employees, but also interns, domestic workers, and independent contractors.
Excluded job postings include temporary employment or positions that cannot, and will not, be performed in New York City (even if the employee lives there) – for example, an in-person role on Long Island.
- Furthermore, the Law does allow employers to hire or continue hiring without using an advertisement. It does not compel employers to create an advertisement as a condition of hiring.
- For instance, if a covered employer who is not advertising any job postings decides to directly reach out to a prospective candidate, such as via referral or “word of mouth,” then such action is permissible under the Law.

How does the pay range posting work?

Employers must state the minimum and maximum salary range (the range cannot be open-ended) they in good faith believe at the time of the posting they are willing to pay for the advertised job, promotion, or transfer opportunity. “Good faith” is defined as the salary range the employer truly believes at the time they are listing the job advertisement that they are willing to pay prospective employees.
- For example, “$15 per hour and up” or “maximum $50,000 per year” would be too open-ended and not be consistent with the new requirements.
Advertisements that cover multiple jobs, promotions, or transfer opportunities can include salary ranges that are specific to each job opportunity.
Salary includes the base annual or hourly wage or rate of pay, regardless of the frequency of payment. For example, it would include an hourly wage of $15 per hour or an annual salary of $50,000 per year.
Nevertheless, employers are not required by the new Law to include information in the job advertisement regarding other forms of compensation or benefits offered in connection with the advertised job opportunity, such as health insurance, PTO, severance pay, overtime pay, commissions, or bonuses.

How is the Law enforced?

The NYCCHR enforces the law by accepting and investigating complaints from the public regarding alleged violations of the Law.
Covered employers who are found to have violated the NYCHRL may have to pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct trainings, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief.
Employers are given a first warning for failure to comply with the Law, provided that the employer shows they have cured the violation within 30 days of receiving the NYCCHR’s notice of the violation. Failure to cure a first violation may result in civil penalties of up to $250,000.00 as well as for any subsequent violations.

Please contact us for guidance or with any questions.

For additional information, please visit:

https://www1.nyc.gov/assets/cchr/downloads/pdf/publications/Salary-Transparency-Factsheet.pdf