New York City and Colorado Are First to Require Compensation Ranges in Job Postings
New York City and Colorado have recently adopted laws that require covered employers to provide wage ranges in job advertisements in an effort to narrow the gender wage gap and encourage pay transparency.
New York City Pay Transparency Law
Effective Date: November 1, 2022
Covered Employers: The New York City Pay Transparency Law (the “Law”), as amended, applies to employers with four or more employees or one or more domestic workers in New York City. All four employees do not need to work in New York City or the same location for an employer to be covered. Employers are covered as long as one of the employees works in New York City. Independent contractors are counted toward the threshold, along with owners and individual employees.
Requirements: The Law will make it a discriminatory practice for an employer (or an employee or agent of an employer) to advertise a job, promotion, or transfer opportunity without stating the minimum and maximum annual salary or hourly wage for the position in the advertisement. In stating the minimum and maximum annual salary or hourly wage for a position, the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity. However, the range cannot be open-ended.
Remote Workers: The law does not apply to “positions that cannot or will not be performed, at least in part, in the city of New York.” Therefore, covered employers hiring for remote positions will still be required to post a salary or hourly wage range, regardless of where the position is actually performed, as it is possible for remote positions to be performed, at least in part, in New York City.
Enforcement: The Commission on Human Rights will also investigate complaints alleging violations of the salary transparency protections. In addition to filing complaints with the Commission on Human Rights, a current employee can bring a claim against their employer for a violation of the Law in relation to an advertisement by their employer for a job, promotion, or transfer opportunity. The Law also includes a safe harbor provision, where employers who are alleged to have violated the law will not have to pay any fine for the first violation if they cure and submit proof that they have cured the violation within 30 days of receiving the complaint, and the Commission accepts proof of the cure. However, doing so will be deemed an admission of liability.
Colorado Equal Pay Act
Effective Date: January 1, 2021
Covered Employers: The Colorado Equal Pay for Equal Work Act (the “Act”) applies to all employers that employ at least one employee in Colorado.
Requirements: The Act imposes requirements on covered employers to disclose compensation in job postings, notify employees of promotional opportunities, and keep wage rate and job description records. In regard to the job posting requirements under the Act, employers are specifically required to provide a 1) compensation range, 2) general description of any bonuses, commissions, or other compensation, and 3) general description of benefits in their job postings for the particular job advertised. A job “posting” is defined as any written or printed communication that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions.
Employers must include a good-faith and reasonable estimate of the possible compensation range at the time the job was posted. This includes both hourly and salary compensation ranges. Employers cannot leave the bottom or top end of the compensation range open-ended.
Job postings must also contain a general description of benefits, including health care benefits, retirement benefits, and any benefits permitting paid days off (including sick leave, parental leave, and paid time off or vacation benefits). Furthermore, employers must describe the nature of the benefits provided but do not need to provide specific details or dollar values. Employers cannot use open-ended phrases such as “etc.,” or “and more.”
Remote Workers: Colorado’s law applies to any posting by a covered employer for either work tied to Colorado locations or remote work performable anywhere, but not work performable only at non-Colorado worksites. Therefore, a remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the Act’s transparency requirements.
Enforcement: The Act’s pay transparency requirements are enforced by the Colorado Department of Labor and Employment Division of Labor Standards and Statistics (the “Division”). Employees can file a complaint with the Division, who can investigate and enforce the provisions under the Act, or the Division can initiate an investigation without any formal complaint. If the Division determines that the employer has committed a violation of the Act, it may order the employer to undertake actions to bring itself into compliance and remedy the violation, and/or fine the employer $500 to $10,000 for each violation.
For further guidance about how to best comply with New York City and Colorado’s job posting requirements, please reach out to Koley Jessen’s Employment, Labor, and Benefits team.