Following the state of Colorado advance, on December 15, 2021, the New York City Council adopted Int. 1208-B (the âInvoiceâ), which requires most employers advertising job offers for positions held in New York City to include in the posting the minimum and maximum wages offered for the position. Failure to do so would be considered an unlawful discriminatory practice under New York City Human Rights Act.
What we know so far
The wording of the bill covers the vast majority of employers who recruit and hire in New York City, including any employer who employs four or more âpeopleâ. When counting individuals to meet the threshold, employers must include independent contractors advancing the employer’s business, as well as a parent, spouse, domestic partner, or child working for the employer.
Under the bill, covered employers would have to include minimum and maximum wages in advertisements for almost all positions, including job postings, promotions and transfers. The published salary scale must represent what the employer believes in good faith that they would pay for the position at the time of posting. The bill does not distinguish between internal and external job offers. Since the bill refers to promotions and transfers, we anticipate that it should be read broadly to cover both internal and external job offers.
Although otherwise extensive in coverage, the bill does not apply to job postings for temporary employment through a recruitment agency. When discussing the bill, the Council’s Civil and Human Rights Committee found that temporary recruiting companies were already providing this information after interviews, in accordance with the State’s Wage Theft Prevention Act. New York.
If signed by the mayor, the bill will come into force 120 days later. The bill authorizes the City’s Human Rights Commission (the âCommissionâ) to take the necessary steps to implement the law, such as developing bylaws and guidelines, before it is terminated. ‘enters into force. Given the scarcity of wording in the bill, we expect that most of the guidance on the practical implementation of this requirement will come from regulations or Commission guidance.
What remains unknown
Although the bill requires an employer to post a minimum and maximum salary scale for each position advertised, it does not define the term “salary”. Therefore, it remains unclear whether the advertisement should include only base salary, total compensation, or some other payment calculation.
When calculating the minimum and maximum wages for the position, an employer should exercise good faith in its determination. As it stands, there is no indication as to how an employer should form or document a good faith belief, or what factors should be taken into account in determining whether such a belief existed at the time of the making. publication. It is also not clear whether an employer might ultimately pay more or less than the displayed range if, for example, a candidate negotiates a higher salary, or if a less qualified or experienced candidate is given an opportunity in a role. somewhat reconfigured of lesser scope.
Additionally, it is not clear whether an employer would be required to update a job posting after an extended period if that good faith belief changes after the initial posting. The bill only provides that a good faith belief in wages must exist when the ad is posted. Therefore, we do not know if an employer would ever have an obligation to revise such a posting if circumstances were to modify this good faith belief.
Finally, while the Bill, if enacted, will certainly apply to advertisements for positions held in New York City, it is not clear whether the Bill will apply to positions offered by a New York-based employer who are not geographically located in the city. limits. We are also uncertain whether positions advertised as “work from home” or fully remote are covered based on the location or operations of the employer in New York City. Notably, similar Colorado law has been interpreted to apply not only to positions that are held in the state of Colorado, but also to those that can potentially be held remotely in the state by a Colorado resident, even if the employer has no existing business in Colorado. Thus, it is possible that the law of the city of New York is applied in the same way. These are matters which can be dealt with by regulations or directives promulgated by the Commission after the enactment of the bill.
What employers should be doing now
All employers nationwide who post vacancies for positions in New York City should watch this development. If the bill passes, employers should do the following:
Review the current processes for posting internal and external opportunities located in New York City to ensure that all promotions, transfers, or new positions, along with relevant job descriptions, include bona fide salary ranges.
Examine the systems for calculating wages, in particular taking into account the factors currently taken into account in determination of remuneration for each position.
Watch for updates on effective dates, whether the bill is signed into local law, as well as news regarding any regulations or guidance to be provided.
Lucas peterhans, a Lawyer – Admission Pending (Not Admitted to the Practice of Law) at the firm’s Newark office, assisted in the preparation of this Insight.
Â© 2021 Epstein Becker & Green, PC All rights reserved.Revue nationale de droit, volume XI, number 357