On September 13, 2023, the New York State Department of Labor published proposed regulations on the state’s salary transparency statute that took effect on September 17, 2023.

As we previously reported, the statute applies to covered employers who post a job, promotion, or transfer opportunity that can or will be performed, at least in part, in the state of New York or for an opportunity outside New York that reports to a supervisor, office, or worksite in New York. Covered employers are required to include the compensation range and job description (if one exists) in job advertisements for covered roles.

Below are some key takeaways from the proposed regulations.  Public comment on the proposed regulations will be received until November 12, 2023.

Wage Range Disclosure

The statute provides that the disclosed compensation range must include the “minimum and maximum annual salary or hourly range of compensation . . . that the employer in good faith believes to be accurate at the time of posting.” The proposed regulations clarify that wage ranges cannot be open ended (e.g., $20/hour and up), but if the company has no flexibility on the compensation for a position, the fixed rate can be stated (e.g., $50,000 per year).

Further, the proposed regulations define “good faith” as “the range of compensation the employer legitimately believes they are willing to pay the successful applicant or employee at the time they post the advertisement.” As such, they clarify that employers are “not precluded from adjusting the range of compensation after collecting additional information through the hiring process.”

The proposed regulations include examples of employer behavior that would or would not constitute “good faith.” Examples of “good faith” include: (1) an employer that determines it needs to readjust the salary range for a position to attract qualified candidates and reposts the position with the updated salary range accordingly; (2) an employer that receives an application for a candidate who exceeds the expected qualifications for a role and therefore offers the candidate a rate of compensation above what was listed on the job advertisement; and (3) an employer that institutes a company-wide raise in pay between the time the job was posted and the time an offer was made.

The examples where employers actions may lack “good faith” include: (1) where the range posted “does not reflect, or misrepresents the rate the employer is willing to pay the successful applicant because the rate is deliberately lower or higher”; and (2) where “the range of compensation is so broad, without further information explaining the reason for the breadth, that it has the effect of preventing the potential or prospective applicant from understanding the legitimate compensation the employer is willing to pay.”

Finally, the proposed regulations provide that the definition of compensation does not include non-salary components of compensation, such as overtime pay, tips, or commissions, or benefits such as health insurance, paid time off, or employer contributions towards retirement or savings plans,.  This is a departure from similar statutes in other jurisdictions (such as Colorado, Washington, and Illinois), which require employers to include certain information about employee benefits.

Job Descriptions

While the statute requires that job advertisements include a job description if one exists, the proposed regulations note that “[a] job description may not exist in the limited circumstance where the name of the position or title clearly conveys the full extent of the duties required of the position without additional detail.” For example, “an employer posting an advertisement for a dishwasher who will be solely washing dishes may not have a more detailed job description available.”

Job Opportunities Outside New York

The proposed regulations echo that the statute applies to remote work opportunities if an individual reports to a supervisor, office, or other work-site in the state of New York. However, they further provide that “[i]ncidental or infrequent instances of being physically present in the state of New York for work-related purposes, such as for an occasional meeting or conference or mere communication with employees based in the state of New York, shall not alone be deemed physically performing an opportunity ‘in part’ in the state of New York.”

Third-Party Job Advertisements.

The proposed regulations provide that job advertisements are covered under the statute regardless of whether they are posted by the employer or through a third-party and that the employer is responsible for all advertisements “that they have consented to post.” However, employers are not responsible for job advertisements that were “scraped” or “automatically aggregated electronically and posted by a third-party without their knowledge or consent.”

Job Advertisements Not Required

The proposed regulations make clear that the statute does not require employers to create job advertisements for all positions nor does it prohibit them from “hiring, promoting, or transferring employees without posting an advertisement.”

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Photo of Allan Bloom Allan Bloom

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages…

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved hundreds of millions of dollars in potential damages.

Allan is regularly called on to advise boards of directors and senior leadership on highly sensitive matters such as executive transitions, internal investigations and strategic workforce planning. He also has particular expertise in the financial services industry, where he has litigated and arbitrated cases, including at FINRA and its predecessors, for more than 20 years.
A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA, Senior Editor), Employment Discrimination Law (ABA/Bloomberg BNA, Final Proof Editor), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR, Editor), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE, Chapter Author).

Allan is a member of the NYSBA’s House of Delegates, sits on the Executive Committee of the NYSBA’s Labor and Employment Law Section, and is a Fellow of the College of Labor and Employment Lawyers. He has been recognized as a leading practitioner by Chambers since 2011.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Theresa Madonna Theresa Madonna

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide…

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide range of employment matters, including employment discrimination litigation and client-counseling. She has assisted in representing employers in litigation and investigations related to claims of workplace harassment, discrimination, retaliation and wrongful discharge. In addition to her litigation practice, Theresa counsels clients regarding employee policies, handbooks, offer-letters and noncompetition and independent contractor agreements. She has gained experience across a wide variety of industries including health care institutions, education, real estate, media and entertainment, financial services and sports. As part of her pro bono practice, Theresa represents individuals in immigration matters and provides employment counseling to non-profit organizations.

Theresa earned her J.D. summa cum laude from Boston University School of Law, where she was a member of the Boston University Law Review and a Legal Research and Writing Fellow. During law school, she was a clinical student attorney and represented clients in employment, housing, and family law matters. Additionally, she interned for the Honorable Juan R. Torruella of the United States Court of Appeals for the First Circuit. Theresa also received Boston University School of Law’s William L. and Lillian Berger Achievement Prize for exemplary scholastic achievement.

Prior to law school, Theresa was an in-house paralegal at a Boston-based technology company.