New York State Enacts Pay Transparency Law

On December 21, 2022, New York State Governor Kathy Hochul signed into law the New York State Pay Transparency Law (PTL), which adds a new § 194-b to the New York State Labor Law (NYSLL).  When the PTL becomes effective on September 17, 2023, it will require covered employers to disclose the salary range and job description for any job, promotion or transfer opportunity that can or will be performed, at least in part, in New York State.  In enacting this new law, New York State joins the states of California and Washington and several localities around the country, including New York City, in requiring employers to disclose wage information.  Employers should be familiar with the details of the new law listed below and be ready to comply with it.      

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Federal and New York State Laws Expand Rights of Pregnant and Nursing Employees in the Workplace

Two new federal laws contained in the Consolidated Appropriations Act, 2023 were enacted on December 29, 2022: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act or PUMP Act).  As the result of the enactment, employers nationwide will now have to provide greater workplace accommodations for pregnant and nursing employees.  And under a recent amendment to New York State Labor Law (NYSLL) § 206-c, New York State employers will need to provide nursing mothers with increased accommodations above those required under federal law.   

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New York State Restricts “No-Fault” Attendance Policies

On November 21, 2022, New York State Governor Kathy Hochul signed into law an amendment to New York State Labor Law (NYSLL) § 215 significantly restricting “no-fault” attendance policies. A no-fault attendance policy is one that assesses points, occurrences or other demerits for absences regardless of reason, and which subjects an employee to discipline or other adverse action when a certain number of points, occurrences or other demerits have been accrued.   

As it currently exists, § 215 protects an employee from discrimination and retaliation for making a good faith complaint about a violation of the NYSLL and for exercising certain other rights under the NYSLL.  The amendment to § 215, which takes effect on February 19, 2023, expands the conduct protected from discrimination and retaliation to include using “any legally protected absence pursuant to federal, local, or state law” and defines discrimination and retaliation as including “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action.”  The intent of the amendment, as stated in the law’s preamble, is “[t]o ensure that it shall be retaliation for an employer to discipline workers by assessing point[s] or deductions from a timebank when an employee has used any legally protected absence.”  Legally protected absences include those under any federal, state or local law that entitle an employee to take time off from work, such as leave under the Family and Medical Leave Act, the New York Paid Family Leave Law and the myriad other federal and New York State leave laws.

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NYS Requires Workplace Notices to Be Available Electronically to Employees

On December 16, 2022, New York State Governor Kathy Hochul signed into law an amendment to New York State Labor Law (NYSLL) § 201. The amendment requires employers to make available to employees digital versions of all notices required to be physically posted at a worksite pursuant to state or federal law or regulation. The digital versions may be made available through the employer’s website or by email. The new law also requires employers to notify employees that documents required to be physically posted are available electronically. The new law took effect immediately upon the governor signing it.

Typical notices that must be physically posted in the workplace, and thus now made available electronically under the new law, include, among others, wage and hour, workers’ compensation and unemployment, leave, benefit and non-discrimination notices. The amendment to § 201 does not require an employer to provide access to any notice that it is not otherwise required to be posted by applicable federal or state law or regulation.     

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Governor Hochul Signs New York State’s First Statewide “Pay Transparency” Law

On December 21, 2022, Governor Kathy Hochul signed legislation aimed at improving “pay transparency,” which will dramatically affect employers’ job advertisement practices across New York State.

Requirements of the New Law

The legislation, which is scheduled to take effect on September 17, 2023, amends the New York Labor Law to include Section 194-b, titled, “Mandatory Disclosure of Compensation or Range of Compensation.” Section 194-b will require employers with four or more employees to include the following in any advertisement for “a job, promotion, or transfer opportunity that can or will be performed, at least in part,” in the State of New York:

• The compensation or “range of compensation” for the job, promotion, or transfer opportunity
• The job description for the job, promotion, or transfer opportunity, if one exists

The term “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 advertisement. Because both a minimum and a maximum are required, merely posting a “starting” or “mid-point” compensation level will be insufficient to meet these requirements. However, for positions that are paid solely on a commission basis, the law appears to be satisfied if the advertisement includes a simple statement that compensation shall be based on commission.

Notably, the law does not define what constitutes an “advertisement” for a job, promotion, or transfer opportunity. The law is also silent on the extent to which bonus compensation – which, in some industries, constitutes a substantial portion of employees’ overall earnings – must be identified in covered advertisements.

The law also requires employers to maintain records of compliance with Section 194-b, including “the history” of compensation ranges and job descriptions for each job, promotion, or transfer opportunity they have advertised. The law is silent on the duration of this recordkeeping obligation.

An employer’s failure to comply with these requirements will result in mandatory civil penalties of $1,000 for the first violation, $2,000 for the second violation, and $3,000 for a third or subsequent violation. In addition, any individual who believes they have been aggrieved by a violation of the law may seek remedies against the employer by filing a complaint with the New York State Department of Labor (“NYSDOL”).

Finally, employers are prohibited from refusing to interview, hire, promote, or employ, or otherwise retaliating against, an applicant or current employee for exercising any rights under the new Section 194-b.

Changes and Guidance on the Horizon?

Although Governor Hochul signed the new legislation into law, she also issued an “Approval Memorandum” which seems to recognize some of the difficulties that employers are likely to face in complying with the legislation as passed. Specifically, the Approval Memorandum states “this legislation need[s] several fixes to ensure effective implementation” and that, therefore, Governor Hochul has “secured an agreement with the Legislature to make technical changes” to the law. According to the Approval Memorandum, these technical changes will:

• “[C]larify job advertising in the law”
• “[E]xclude remote job opportunities performed entirely outside of the State without a connection to a New York office or supervisor”
• “[E]liminate the previous record maintenance requirement for businesses”

In addition, the NYSDOL is required to issue rules and regulations under the law. Accordingly, employers should keep an eye out for legislative and regulatory updates, which we hope will clarify some of the key open questions surrounding implementation of the new law.

Déjà vu for NYC and Westchester County Employers

For employers who have operations or advertise positions in New York City or Westchester County, this may all sound strikingly familiar. This is because similar local laws took effect in New York City on November 1, 2022, and in Westchester County on November 6, 2022.

As reported in the media, New York City’s law is off to a rocky start with widespread criticism levied against employers for posting wide pay ranges. See, e.g., Matthew Boyle & Eric Fan, Bloomberg News, With Pay Ranges of $2 Million, NYC Transparency Law Is Off to a Glitchy Start (Nov. 1, 2022), available here. This may be a sign of things to come in the rest of the state.

Notably, the new legislation expressly states that it does not preempt or supersede any local law, rules, or regulations. Thus, employers in New York City, Westchester County, and any other locale that has or may adopt local pay transparency laws will need to ensure compliance with both the local and the statewide law.

If you have any questions about the new pay transparency law or how it may impact your business, please contact John M. Godwin (716.848.1357), Charles H. Kaplan (646.218.7513), Kinsey A. O’Brien (716.848.1287), or any other member of our Labor & Employment Practice.