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Ten Things to Know About New York’s Proposed Regulations on Pay Transparency in ​​​​​​Job Advertisements

On Wednesday, September 13, the New York Department of Labor (DOL) released proposed regulations on the statewide wage transparency law which went into effect on September 17, 2023. The purpose of regulations is to explain and interpret how the law will be implemented.  

The DOL is currently collecting public comments on the proposed regulations prior to finalization. Submitting comments assists the agency with determining if additional changes or information should be addressed in any final regulations. The comment period will remain open until November 12, 2023

Here are ten key things to know about the proposed regulations: 

  1. The law does not apply to governmental agencies. 
  2. Incidental or infrequent instances of being present in the state for work-related purposes, such as for an occasional meeting or conference, or communication with employees based in NY, will not subject an employer to the law. Instead, the employer should determine if the position is regularly being performed in NY or if the position will report to a NY based supervisor, office or worksite. 
  3. Employers may use various methods to post job advertisements; however, all types of advertisements for a specified position are covered under the law including, but not limited to, newspaper advertisements, printed flyers that are either distributed or displayed, social media posts, emails sent to a pool of applicants or electronic communications sent using an email list.  
  4. Advertisements are covered under the law regardless of whether the employer posts them directly or through a third-party, such as a recruiter or a job listing website; employers are solely responsible for ensuring compliance with the law.
  5.  The law does not require a position to be advertised; employers may hire, promote or transfer employees without posting an advertisement. 
  6. If an advertisement for an opportunity is intended to cover multiple geographic locations or intended to include multiple levels of seniority or supervisory authority, then multiple ranges of compensation for each individual opportunity must be provided.  
  7. The “range of compensation” does not include other forms of compensation or benefits offered in connection with the opportunity such as fringe benefits, overtime pay, tips, bonuses or the value of employer-provided meals or lodging. However, employers may provide additional relevant compensation or benefit information. 
  8. The “range of compensation” cannot be open-ended; if an employer has no flexibility in the rate or salary they are offering, the fixed rate or salary should be stated. 
  9. “Good faith” means the range of compensation the employer legitimately believes they are willing to pay the successful applicant or employee at the time they post an advertisement, and it does not prevent an employer from adjusting the range of compensation after collecting additional information through the hiring process such as an applicant’s education and experience.  
  10. A “lack of good faith” would be posting a range of compensation that does not reflect, or misrepresents, the rate that the employer is willing to pay at the time of posting; or posting a range of compensation that 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 range of compensation that the employer is willing to pay.  

    Next Steps for Employers 

    Employers are encouraged to review the proposed regulations in their entirety as they contain additional relevant information including illustrative examples of “good faith actions.” 

    Employers who would like to comment on the proposed regulations should do so before the close of the comment period (November 12). Written comments may be submitted to the DOL at:

    Current HR Works clients may contact the Virtual Helpline or their HR Consultant for additional information on this Special Alert. Non-HR Works clients may contact us for HR solutions by calling toll free at 1-877-219-9062 or visiting our website. 

    HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.