Following the state of Colorado’s lead, on December 15, 2021, the New York City Council enacted Int. 1208-B (the “Bill”), which requires most employers advertising job openings for positions performed in New York City to include in the posting the minimum and maximum salaries offered for the position. Failure to do so would be considered an unlawful discriminatory practice under the New York City Human Rights Law.

What We Know So Far

The Bill’s language covers the vast majority of employers who recruit and hire in New York City, including any employer that employs four or more “persons.” When counting individuals to meet the threshold, employers must include independent contractors furthering the employer’s business, as well as an employer’s parent, spouse, domestic partner, or child working for the employer.

Under the Bill, covered employers would have to include minimum and maximum salaries in advertisements for almost any position, including job listings, promotions, and transfers. The published salary range must represent what the employer believes in good faith it would pay for the position at the time of posting. The Bill does not distinguish between internal and external job postings. Since the Bill refers to promotions and transfers, we anticipate that it is intended to be read broadly to cover both internal and external job postings.

Although otherwise extensive in coverage, the Bill does not apply to job advertisements for temporary employment through a staffing agency. When debating the Bill, the Council’s Committee on Civil and Human Rights reasoned that temporary staffing firms already provide this information after interviews, pursuant to the New York State Wage Theft Prevention Act.

If signed by the mayor, the Bill will take effect 120 days thereafter. The Bill authorizes the City’s Commission on Human Rights (the “Commission”) to take necessary actions to implement the law, such as developing regulations and guidance, before it takes effect. Given how sparse the Bill’s language is, we expect most of the direction in how to implement this requirement practically will come from the Commission’s regulations or guidance.

What Remains Unknown

Although the Bill requires an employer to post a minimum and maximum salary range for each advertised position, it does not define the term “salary.” Therefore, it remains unclear whether the advertisement must include just a base salary, total compensation, or some other calculation of payment.

When calculating the minimum and maximum salaries for the position, an employer would need to use good faith in its determination. As it currently stands, there is no guidance on how an employer should form or document a good faith belief, or what factors should be considered when determining if such belief existed at the time of posting. It is also not clear if an employer could ultimately pay more or less than the posted range if, for example, a candidate negotiates a higher salary, or if a less qualified or experienced candidate is offered an opportunity in a somewhat reconfigured role of lesser scope.

Further, it is unclear whether an employer would be required to update a job posting after an extended period of time if that good faith belief changes subsequent to the initial posting. The Bill only provides that the good faith belief in the salaries must exist when the advertisement is posted. Therefore, we do not know whether an employer would ever have a duty to revise such posting if circumstances arose to alter that good faith belief.

Finally, while the Bill, if enacted into law, certainly applies to advertisements for positions performed within New York City, it is unclear whether the Bill will apply to positions offered by a New York City-based employer that are not geographically located within the city limits. We also do not know whether positions that are advertised as “work from home” or fully remote are covered based on the employer’s location or operations within New York City. Notably, the similar Colorado law has been interpreted to apply not only to positions that are performed within the state of Colorado, but also to those that potentially can be performed within the state remotely by a Colorado resident even if the employer has no existing operations in Colorado. Thus, it is possible that the New York City law will be applied similarly. These are issues that may be addressed by regulations or guidance promulgated by the Commission after the Bill is signed into law.

What Employers Should Do Now

All employers­ nationwide that post job opportunities for positions in New York City should monitor this development. If the Bill is enacted, employers should do the following:

• Review current processes for posting internal and external opportunities located in New York City to ensure that all promotions, transfers, or new positions, as well as relevant job descriptions, include bona fide salary ranges.

• Review systems for salary calculation, specifically considering what factors are currently considered in determining compensation for each position.

• Watch for updates on effective dates, should the Bill be signed into local law, as well as news regarding any regulations or guidance to be provided.

Lucas Peterhans, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s Newark office, contributed to the preparation of this Insight.