Effective November 6, 2022, a new wage transparency law, amending the Westchester County Human Rights Law, prohibits employers from advertising a job, promotion, or transfer opportunity without also including the minimum or maximum salary information in the job posting or advertisement. The law aims to help close the gender and racial pay disparity by leveling the information playing field, while also saving employers’ time by narrowing the applicant pool based upon applicants’ desired salary range.
Who does the new law apply to and when is it triggered?
The new law applies to employers (with at least four employees), labor organizations, employment agencies, and licensing agencies. The disclosure requirements apply to any job listings for remote, office, or field work that must be performed, in whole or in part, in Westchester County.
However, the legal requirements do not apply to job postings for temporary employment at a temporary help firm. Similarly, “Help Wanted” signs affixed to the workplace or similar communications that only generally indicate, without reference to any particular positions, that an employer is hiring are not subject to the new law.
What does the law now prohibit?
Under the new law, it is an unlawful discriminatory practice for an employer to post a covered job, promotion, or transfer opportunity without also including the minimum and maximum salary for the position advertised in the posting that the employer in good faith believes, at the time of posting, it would pay for the advertised position. A “posting” is defined as any written or printed communication in electronic or hard copy form that relates to a position for which the employer is accepting applications, with the exception of “Help Wanted” signs as noted above.
Additionally, the law prohibits a covered employer from:
- Relying on a prospective employee’s wage history from any of their current or former employers to determine their wages, unless the prospective employee volunteers the information to negotiate a higher salary than originally offered.
- Requiring an applicant to disclose their previous wages or seeking an applicant’s wage history from any of their current or former employers.
That being said, an employer may rely on or seek to confirm an applicant’s wage history only if it already extended an offer of employment and the applicant, in response, volunteered prior wage information to negotiate a higher wage. Under these limited circumstances, the employer may seek to confirm wage history only after it has received written authorization from the applicant to do so.
Further, the new law also includes a retaliation provision, which prohibits employers from refusing to hire an employee or prospective employee based on their prior wage history. The retaliation provision also protects employees or prospective employees who oppose an employer’s unlawful acts under the law.
What are the penalties?
Employers found to be in violation of the law may face penalties ranging from remedial action to costly damage awards and civil penalties. For example, employers may be required to hire or reinstate the aggrieved person with or without back pay or train its employees regarding the legal requirements. Additionally, liable employers may be required to pay compensatory damages, including, but not limited to, actual damages, back pay, front pay, and mental anguish and emotional distress to the applicant or employee, as well as for an applicant’s or employee’s attorneys’ fees and costs. Moreover, violators may be subject to civil penalties up to $125,000, or $250,000 for willful violations.
What should employers do now?
All covered employers who intend to post job listings for remote or in-person positions that are required to be performed, in whole or in part, in Westchester County should make sure to include the minimum and maximum salary for the positions advertised. These employers should carefully update any job listings already posted to ensure that the required pay range is included. The same precautions should be taken for any promotions or transfer opportunities offered to current employees.
In addition, covered employers should refrain from inquiring about a prospective employee’s wage history, unless an offer of employment with compensation has been made and the prospective employee volunteered prior wage information to negotiate a higher salary. In this particular circumstance, an employer may confirm the volunteered wage information, only after receiving the prospective employee’s written authorization.
Westchester County is yet another jurisdiction with salary disclosure requirements. As we recently reported, the New York City pay transparency law went into effect on November 1, 2022 and New York State is currently considering passing statewide legislation.