New York City’s Salary Transparency Law To Take Effect November 1, 2022

On November 1, 2022, the salary transparency provisions of the New York City Human Rights Law (“Salary Transparency Law”) will take effect and will require “employers advertising jobs in New York City” to “include a good faith salary range for every job, promotion, and transfer opportunity advertised.”[1] With this Client Alert, we hope to provide some guidance upon which employers and their job opportunities are affected and how the Salary Transparency Law may affect the Permanent Labor Certification Application (“PERM”) process in the employment-based immigration context.

Which Employers Are Affected By The Salary Transparency Law?

The Salary Transparency Law applies to all employers that have four (4) or more employees[2] or one (1) or more domestic workers. It is critical to note that as long as one (1) employee works in New York City, the workplace is subject to the Salary Transparency Law.[3]

Regardless of their size, employment agencies are also subject to the Salary Transparency Law and, therefore, must ensure that any jobs promoted by them comply with the Law’s requirements. The Law, however, does make exceptions for temp agencies. Although temp agencies that recruit, hire and assign their own employees to perform work/services for other companies, or to supplement another company’s workforce, are not subject to the Salary Transparency Law, the employers who utilize the temp agency’s services must comply with the Law.

Which Jobs Are Subject To The Salary Transparency Law?

The Salary Transparency Law covers any advertisement[4] for a job, promotion, or transfer opportunity that can or will be performed, in whole or in part, from an office, in the field or remotely from the employee’s home in New York City. This includes both full-time and part-time jobs for “employees, interns, domestic workers, independent contractors, or any other category of worker protected” by the Salary Transparency Law.[5]

Although there has not been definitive guidance from the U.S. Department of Labor or the NYC Commission on Human Rights, the Agency responsible for enforcing the Salary Transparency Law, it would appear that a position that is fully-remote and can be performed from “anywhere in the United States” would be subject to this Law because the job could be performed in New York City.

The law covers all advertisements regardless of media used. “Covered listings include postings on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements.”[6]

What Information Must Be Included In The Job Advertisements?

The Salary Transparency Law requires employers to disclose in the job advertisement both the minimum and maximum salary[7] that they are willing to pay in good faith[8]. “Employers must include both a minimum and a maximum salary; the range cannot be open ended. For example, “$15 per hour and up” or “maximum $50,000 per year” would not be consistent with the new law’s requirements. If an employer has no flexibility in the salary offered, the minimum and maximum salary may be identical, for example, “$20 per hour”[9].” (Emphasis added)

How Will The Salary Transparency Law Be Enforced?

The NYC Commission on Human Rights will accept and investigate complaints received by the general public and will also initiate its own investigations into violations of the Salary Transparency Law.

Employers who are found in violation of the Salary Transparency Law may face steep fines for second and subsequent offenses. The Commission on Human Rights will not assess monetary fines for the first violation so long as the employer fixes the violation within thirty (30) days of receiving the Commission’s notice of violation. However, employers who fail to fix a first violation or accrue subsequent violations, are subject to civil penalties of up to $250,000.

What Is The Impact Of The Salary Transparency Law On The PERM Process?

The PERM process requires job advertisements to include the name of the employer, the job location, a job description that is specific enough to inform U.S. workers of the job opportunity, and instructions on how to apply for the job. With this new Salary Transparency Law, PERM advertisements for jobs that can or will be performed, in whole or in part, in New York City must now also include a salary range, wherein the minimum salary must be at least equal to the prevailing wage and a maximum salary at the top of the range. In that connection, the prospective salary offered to the foreign national subject to the PERM must be within the salary range posted. This raises issues as to how a sponsoring employer can commence the mandatory pre-filing PERM recruitment process before it receives a Prevailing Wage Determination for the proffered position.

Conclusion

The immigration attorneys at Meyner and Landis have significant experience with the entire lifecycle of the PERM process and are actively working on solutions for our NYC-based clients in anticipation of this new legislation. If you have any questions regarding the PERM process, the Salary Transparency Law, and whether it may apply to your particular employment situation, please contact us for a consultation as soon as possible. 

By Meyner & Landis LLP, US, a Transatlantic Law International affiliated firm. 

For further information or for any assistance regarding US immigration law please contact Anthony Silato at usimmigration@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 95 affiliated independent law firms worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.