“Salary commensurate with experience.” It’s a phrase known well to online job hunters and a useful tool for employers seeking to entice the most qualified job applicants without committing to a specific pay range. At least, it was. Effective May 15, 2022, some New York employers can no longer rely on vague salary descriptions and will instead be required to disclose a specific salary range in their job listings.

The change was made in December 2021 by the New York City Council, which amended the New York City Human Rights Law (“NYCHRL”) to include Section 8-107(32) (the “Amendment”). Per the Amendment, employers have to determine a minimum and maximum salary range for a given position and include that information in the job posting – whether it is an external posting, or an internal advertisement for a promotion or a transfer opportunity.

A December 2021 report from the City Council delves into gender and race wage gaps, some of the factors driving those gaps, and how this amendment is part of a larger push for pay transparency. It compares this initiative to prior ones, such as New York’s existing prohibition on asking workers for salary history (effective 10/31/17). The new disclosure requirement, the Report says, is intended to facilitate fairer salary negotiations for women, who are known (from studies past) to ask for lower salaries in comparison to their male counterparts.

As Councilmember Helen Rosenthal stated during the December 14, 2021 virtual hearing,

Lack of upfront pay range disclosure necessitates a salary negotiation in which the employer always has the upper hand. This often results in lower wages for women, people who are black and brown, and those with disabilities– upholding decades of systemic inequities and bias in hiring.

As of now, the requirement applies to employers with four or more employees. It also applies to employment agencies, though not to temporary staffing agencies when advertising for temporary positions (since those agencies already provide this information after interview in compliance with the NY State Wage Theft Prevention Act).

However, it isn’t yet clear whether the new requirement applies to all jobs advertised in New York City or only postings for jobs physically located in New York City. Further, it is unclear whether it applies to employers who are physically located outside of New York City.

Importantly, the law does not set forth any specific requirements for the salary range, leaving wiggle room for employers who don’t want to commit to a specific number. However, it does require that employers determine the range “in good faith.”

Moreover, since the requirement is part of the NYCHRL, it follows that a failure abide would amount to an unlawful discriminatory act. With what penalties? Well, that remains to be seen. Per the Amendment, the New York City Commission on Human Rights (the “Commission”) will be the enforcing body and, generally speaking, the Commission can impose civil penalties of up to $250,000 if a violation is deemed willful, wanton, or malicious. Additionally, employers may face lawsuits from aggrieved individuals.

New York employers would do well to reassess their own internal policies with respect to both salaries and job postings, and to keep an eye out for further guidance from the Commission.

For more information on how to prepare for the new requirement, contact the author, Jaspan Schlesinger Associate Rachel Morgenstern, at rmorgenstern@jaspanllp.com