In March, New York State Governor Kathy Hochul signed a bill which amends New York State’s pay transparency law (New York Labor Law Section 194-b). The amended law takes effect on September 17, 2023. Before the amendments, the law required employers with four or more employees, employment agencies, employees, or their agents to disclose the compensation or range of compensation to job applicants and employees for advertised positions, promotions, or transfer opportunities that “can or will be performed, at least in part, in the state of New York.” It also required them to include a job description in the posting, if one exists. Our previous Schnader Client Alert on the original law can be found here.

Notably, the amendments to New York Labor Law Section 194-b change the original law as follows:

• The law applies to covered advertisements for a “job, promotion, or transfer opportunity that will physically be performed, at least in part, in the state of New York, but no longer applies to those that “can” be performed in New York. Thus, the amendment removes from the law’s scope, advertisements by out-of-state employers who advertise jobs that theoretically could be performed in New York but will not be performed there. This change provides much needed clarification as to how the pay transparency law applies to remote and hybrid workers.
• The law defines a job that “will be performed in the state of New York” as one that includes a job, promotion, or transfer opportunity that will physically be performed outside of New York, but reports to a supervisor, office, or other work site in New York…”
• The amended law eliminates the original law’s requirement that employers keep or maintain records to comply with the law, including but not limited to, the history of compensation or compensation ranges for each job, promotion or transfer opportunity, and their job descriptions.
• The law adds a definition of “advertisement:” “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.” This new definition clarifies that an advertisement includes postings internally at an employer or publicly. One point of clarification needed is whether only employers or persons or entities that advertise can be liable for advertisements posted on job boards such as at colleges, universities, or graduate schools. The law’s definition of “employer” includes “any person, corporation, limited liability company, association…otherwise connecting applicants with employers.”

Suggested Steps for Employers

In light of these amendments, employers should ensure that compensation or a range of compensation is listed and that a job description, if available, is provided in the advertisement for any positions, promotions, or transfer opportunities that will physically be performed, at least in part, in New York or reporting to a supervisor, office, or other work site in New York. Employers should also remain mindful of the requirements of New York City’s own salary transparency law, which is more expansive than New York State’s Labor Law (and covers advertised jobs that can or will be performed in New York City).

Multi-state employers should stay abreast of other states’ and localities’ salary transparency laws, regulations, and guidance. All employers should confer with legal counsel regarding legal requirements and any further government guidance issued with respect to these laws.