Employers doing PERM cases need to be on the lookout for local laws that require salary transparency in recruitment ads. Pursuant to the Department of Labor’s PERM regulations, recruitment advertisements must include only the name of the employer, the job location, directions on how to apply for the position, and a description of the position specific enough to apprise U.S. workers of the opportunity – not salary information. Local laws may impose additional requirements.
The new salary transparency in job advertisements law in New York City, effective November 1, 2022, and enacted as part of the New York City Human Rights Laws, will require most job postings for positions that can or will be performed in whole or in part in New York City to include a good faith salary range. In addition:
- The new law applies to all employers with at least four employees – with at least one employee working in New York City. The definition of salary does not include other forms of compensation or benefits, such as commissions or bonuses, stock options, or employer provided insurance.
- The position must be one that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home, and whether part-time or full-time. If the position is fully remote and can be performed from “anywhere,” then the position would be covered because it could be performed in New York City.
- Both the minimum and maximum salary must be included – if there is no flexibility in the salary, the minimum and maximum salary would be the same. In the PERM situation, the salary on the recruitment ads would match the salary on the PERM Notice of Filing (NOF). In Special Handling Cases, under DOL regulations, NOFs do not require a salary range. If the college or university and the position meet the new law eligibility requirements, however, the NOF and the recruitment advertisements should include the salary range.
- All types of advertisements are covered: postings on internal bulletin boards, internet ads, printed flyers distributed at job fairs, and newspaper advertisements. This would appear to include all types of PERM ads.
The New York City Commission on Human Rights will enforce the law based upon tips and may initiate its own investigations. Individuals also may file complaints in civil court against their current employers. Violators may have to pay monetary damages and civil penalties. They also may be called upon to engage in affirmative relief, such as amending advertisements, updating policies, and conducting training. The purpose of pay transparency laws is to promote pay equity. Colorado has a similar Transparency in Pay Act, instituted in 2021, covering employers that have at least one employee in Colorado. Washington also has a similar law that will become effective on January 1, 2023. While New York City, Colorado, and Washington are the only localities with laws that do or will require salary rates in all job postings, other states have pay transparency laws that require salary disclosure at certain points in the hiring process and, at some point, may require salary ranges in advertisements. Recently, New York State passed Senate Bill S9427A, which would amend Section 194 of the New York Labor Law to require the disclosure of compensation ranges in job, promotion, and transfer advertisement state-wide. The bill would require all employers with at least four employees to include the compensation, or a range of compensation, for any job advertisement that “can or will be” performed, at least in part, in New York. The bill currently defines a “range of compensation” as the “ minimum and maximum annual salary or hourly range of compensation” for a particular job. The pay transparency bill will go into effect 270 days after being signed into law by Governor Kathy Hochul.