Pay Transparency Act

On September 17, 2023, the Pay Transparency Act became effective in New York.  This law, which the New York State Department of Labor administers, mandates that any business with at least four workers must disclose salary ranges for any job advertised to the public or internally to workers seeking promotion or transfer.

This law applies to any job that will be performed entirely or partially in New York State. It also applies to jobs that will be performed outside the state where the employee will report to a supervisor, office or work site in New York State. Therefore, employment opportunities for persons who will work remotely may also be covered.  Advertising a position will include, but not be limited to, jobs offered in newspapers, printed flyers, social media posts, and emails sent to multiple recipients through an electronic mailing list.

Nothing in the law requires an employer to post or advertise positions either externally or internally. An employer is free to offer the position to an individual without advertising that position to others. Employers whose employees are members of a union should note that a collective bargaining agreement may have a different requirement.

Any advertisements for employment must contain the job description, unless the job title is sufficient to convey the description, and a pay range showing the maximum and minimum offered pay.  A job offer with a fixed fee may be advertised without a range. For instance, one may advertise a position with a salary of $50,000 or a job paying $20 per hour.

The law recognizes that there are circumstances under which an employer may in good faith wish to pay a candidate more than originally advertised. For example, if an employer advertised for a person with a specific experience or educational background and a candidate exceeds the posted requirements, the employer is permitted to offer the candidate more than advertised.  For more information on the Pay Transparency Act, see https://dol.ny.gov.

Pregnant Workers Fairness Act

On the federal level, there is a new Pregnant Workers Fairness Act (“PWFA”), which the Equal Employment Opportunity Commission (“EEOC”) administers. This law applies to employers with 15 or more employees. It requires covered employers to provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will cause the employer an “undue hardship.”  These words are strongly reminiscent of the Americans with Disabilities Act and the Civil Rights Act.  

Examples of reasonable accommodations published by the legislature include offering the ability to sit or drink water; assigning a closer parking spot; scheduling flexible work hours; providing uniforms and safety apparel of a sufficient size; allowing additional break time to use bathrooms, rest or eat; permitting time off for childbirth; and excusing the covered person from activities that might be unsafe for a pregnant person. The EEOC defines and undue hardship that would relieve the employer of its responsibility to provide a particular relief from disability as one that would result in “significant difficulty or expense for the employer.”

The covered employer is required to discuss the accommodation with the employee. The employer cannot unilaterally impose it. In addition, the employer may not deny a qualified employee or applicant an opportunity because the person has a need for an available reasonable accommodation. Retaliation against an employee for reporting or seeking redress from a violation of the law is also forbidden.

The law went into effect on June 27, 2023, and the EEOC is currently writing regulations in furtherance of the law.  In order for the EEOC to bring charges against an employer, the situation complained of must have arisen on or after June 27, 2023.  It is worth noting that a situation that arose before the PWFA went into effect may still be covered by Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, or the PUMP Act, which provides protection for nursing mothers.  For more information on the PWFA, see https://www.eeoc.gov.