What major US city isn't in-play? Insider warns that the newly built greatness of Miami, especially in tech, could go poof. Meanwhile, as everyone has known for a while, the cities of Silicon Valley have experienced more moving vans heading out than coming in. There's a brain drain. As for New York City, the situation is iffy. But, an encouraging sign is that government has been receptive to what businesses need. That has included their beefs about the NYC Salary Disclosure Law. Here is that snippet of hope. Wall Street law firm Paul Weiss provides the details.
AN INNOVATION OF SORTS (but not in the eyes of employers)
On May 12, 2022, New York City Mayor Eric Adams had signed into law the Salary Disclosure Law. It goes by myriad other titles such as the “Amended Transparency Salary Law.
Essentially it makes NYC the second jurisdiction – Colorado has been the first – to require employers to post minimum/maximum data for position postings. But there had been significant modifications before it gelled into the bill which became the current law.
THE PUSH-BACK FROM BUSINESS
From the get-go, employers weren't happy. Also they were confused.
In its Client Memorandum law firm Paul Weiss gives the highlights of that conflict.
Here is the law’s original form, here is the amended version and here is the cheat sheet from the NYC Commission on Human Rights (NYCHR) which enforces the law.
Paul Weiss cuts to the chase. The original law, which had been passed on January 15, 2022, set off criticism from both certain business groups as well as government officials. That included the observation that some provisions wouldn’t be effective for achieving gender and racial parity. Also most of those affected claimed they had no knowledge of the legislation. In addition, there were ambiguities. The result was that on April 28, 2022, an amended bill addressing the complaints was introduced.
PAUL WEISS SPELLS OUT THE 4 CHANGES MOST USEFUL FOR EMPLOYERS
But the key parts of the Paul Weiss Memorandum hammer how the amended version is useful for employers in 4 specific ways. They are:
More time provided for compliance. The original date had been May 15, 2022. The new one is November 1, 2022. Paul Weiss recommends:
- Using that time to come into compliance with the changes, including educating managers, human resources, and legal/compliance departments.
- Reviewing templates for existing postings for jobs, promotions, and transfers. If necessary, developing new ones to align with the provisions of the amendments.
- Monitoring the roll-out of the law in order to be aware of any updates and additional guidance.
Clarifies ambiguities. Those include:
- “Salary” disclosure requirement covers not only salaried but also hourly jobs, promotions, and transfers.
- It is an unlawful discriminatory practice for an employer or an employment agency “to advertise a job, promotion or transfer opportunity without stating the minimum and maximum annual salary or hourly wage for such position in such advertisement.”
- Law doesn’t apply to positions that can’t or won’t be performed, at least in part, in NYC. That ensures that jobs performed virtually in NYC or for NYC employers are all covered. However, during the implementation of the law the NYCHR might make additional determinations about which jobs are covered even if employers do not maintain facilities in NYC.
- All Employers with four or more employees must comply.
Narrowed scope of who can bring cause of action.
An applicant for a job can’t take action under the law. The applicant who had not been hired might have filed a complaint. That is now explicitly banned. Only a current employee can do that against the employer for an alleged violation.
Hold-off of penalty, time for course-correction.
Yes, the NYCHR accepts and investigates complaints about alleged violations. In addition, its Law Enforcement Bureau can launch its own investigations. Also, individuals with a complaint can also file a lawsuit in civil court.
However, the amendment specifies there will not be a civil penalty for employers for the first alleged violation. Instead, there will be a 30-day window after being notified for the employer to correct the situation. If there isn’t course correction within that timeframe, the civil penalty could be up to $250,000.
EMPLOYERS COULD POSITION SALARY DISCLOSURE LAW AS STEP IN REIMAGINING MANAGEMENT/LABOR CONTRACT
Great cities got that way throught the vision of their founders and the collective creative energy of their residents. NYC employers can re-create that force field by standing proud about the pioneering Amended Salary Disclosure Law. Hey, it can signal to the world, we care about talent. That's why we are among the first to be transparent about salary.
Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance assignments for law firms such as Paul Weiss and for their vendors.