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.

The DOJ is cracking down on anticompetitive activities

In connection with the Biden administration’s aims at promoting competition throughout the economy, the Department of Justice (“DOJ”) has started taking a more active role in investigating, as well as prosecuting, employers’ alleged anticompetitive activities that, among other things, unfairly limit worker mobility.

The first healthcare staffing company to plead guilty

In furtherance of those efforts, the DOJ recently scored a significant victory when a Nevada healthcare staffing company pleaded guilty to entering into and engaging in illegal “no-poach“ hiring agreements with a competitor to allocate employee nurses and fix their wages, in violation of the Sherman Act.  This is the DOJ‘s first win in the criminal enforcement of such labor antitrust violations.

Criminally fined

More specifically, on October 27, 2022, and after the entry of a guilty plea, the U.S. District Court for the District of Nevada ordered VDA OC LLC (f/k/a Advantage On Call LLC) to pay a criminal fine of $62,000 and restitution of $72,000 to nurses affected by the agreement with its competitor, totaling $134,000 in the aggregate.  The $62,000 fine was based on a volume of commerce – or the amount of business affected by the violation – of $218,000.

How the fine is calculated

United States Sentencing Guidelines recommend fines of 20% of total affected commerce, adjusted for culpability.  The volume of commerce of $218,000 was derived from payroll records for the wages paid to affected nurses during the period of the conspiracy.  The significant $72,000 restitution portion of the sentence is approximately one-third of the agreed-upon volume of commerce, and its magnitude may reduce the risk of follow-on private litigation by affected employees who recognize that the DOJ may instead pursue and prosecute on their behalf.

Competitor agreements under scrutiny

The DOJ and FTC in 2016 announced they would begin targeting companies‘ labor market agreements with competitors to allocate workers and fix wages as criminally liable, rather than just a violation of civil law.  Three other criminal labor market antitrust cases brought by the DOJ are currently pending.  This initial victory for the DOJ is expected to spur additional investigations into other potentially unlawful arrangements between competitor companies.

Employers beware

Any employers who currently are involved with, or contemplating entering into, any “no poach” agreements with competitors should view this development as a stern warning, and they are strongly advised to promptly discuss any such arrangements with their legal counsel.

As of today, November 1, 2022, the New York City pay transparency law goes into effect. As we previously reported here, the law requires covered employers to disclose minimum and maximum salary information in job postings, promotions, and transfer opportunities.  The law has already been amended once pursuant to Int. 134-A, which was signed by Mayor Eric Adams on May 12, 2022 (see our summary of those amendments here), and employers should stay up-to-date with any new guidance from the New York City Commission on Human Rights (the “Commission”).  The Commission last issued guidance on May 12, 2022.

New York State employers should also be aware of pay transparency legislation, S. 9427, which has been passed by the State legislature but has not yet been signed by Governor Kathy Hochul. The bill is currently under consideration by Governor Hochul, and, if enacted, will take effect 270 days after it is signed into law. We will provide additional updates if this legislation is passed.

On September 20, 2022, New York City Mayor Eric Adams announced that New York City will end the vaccine mandate for the private sector, which has been in effect since December 27, 2021. As we reported, the vaccine mandate required workers in New York City who go to work in-person or interact with the public to show proof of full vaccination for COVID-19 to their employers, unless they obtained an exemption for medical or religious reasons.

As of November 1, 2022, private employers in New York City will no longer need to require COVID-19 vaccination to allow employees to enter their workspaces or interact with the public during the workday. That being said, these employers are still permitted, and encouraged by New York City, to enforce their own mandatory vaccine policies, subject to compliance with applicable federal and local guidance.

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (“CRC”) issued interim guidance (the “Guidance”) for employers regarding the employment protections passed for cannabis users last year pursuant to the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”).  The Guidance shall remain in effect until the CRC publishes the standards for Workplace Impairment Recognition Expert (“WIRE”) certification.

As noted in more detail below, the Guidance discusses an employer’s right to maintain a substance-free workplace and offers practical guidance for employers struggling with how to ascertain whether an employee is impaired during working hours.

What protections are available to cannabis users in the workplace?

As we previously reported, NJCREAMMA provides various employment protections for employees who use cannabis recreationally and imposes strenuous requirements on New Jersey employers who conduct drug testing for the presence of cannabis in an individual’s system.  Namely, under NJCREAMMA:

  • New Jersey employers are prohibited from refusing to hire or take any adverse employment action against employees based solely on their use (or nonuse) of recreational cannabis. Therefore, an employer may not terminate an employee solely because he or she fails a drug test due to cannabis use.
  • Any cannabis testing conducted by employers must be based upon “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and the test must also include a “physical evaluation in order to determine an employee’s state of impairment.”
  • The individual conducting the aforementioned “physical evaluation” must be certified as a WIRE in accordance with standards to be established by the CRC, which will include receiving education and training “in detecting and identifying an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance, and for assisting in the investigation of workplace accidents.”

Notably, the “physical evaluation” requirement has been temporarily suspended by the CRC since August 2021 until the CRC develops WIRE certification standards.  As noted above, the Guidance provides that it “is intended to serve as guidance until the NJ-CRC formulates and approves standards for WIRE certifications.”

What does the Guidance say?

The Guidance contains the following key takeaways:

  • The Guidance reaffirms that NJCREAMMA prohibits employers from taking any adverse employment actions against employees based solely on their use of cannabis or having cannabis metabolites in their system.
  • The Guidance emphasizes that NJCREAMMA does not interfere with an employer’s right to maintain and enforce a substance-free workplace and require employees to undergo drug testing in the following circumstances: (1) an employer having reasonable suspicion of an employee’s usage of cannabis or cannabis products while performing their job duties; (2) an employer finding any observable signs of impairment related to cannabis or cannabis product use; (3) as part of a random drug testing program; or (4) following a work-related accident subject to investigation by the employer.
  • Employers are permitted to take an adverse action against an employee who, in connection with a drug test that meets the law’s requirements, tests positive for cannabis use and when there is “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours[.]” Significantly, the Guidance does not explicitly require that an employer conduct a drug test for cannabis use to take an adverse employment action against an employee.  Instead, the Guidance states that having documented reasonable suspicion of impairment “paired with other evidence, like a drug test” may be used to determine that an individual violated a substance-free workplace policy.
  • To determine physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for potential cannabis use or impairment during working hours, the Guidance offers the following suggestions to employers:
    1. Designate an interim staff member or third-party contractor to make determinations regarding suspected cannabis use. The Guidance states that this individual should be trained and qualified to determine impairment and complete a Reasonable Suspicion Observation Report (more on that below).
    2. Use the sample Reasonable Suspicion Observation Report from the CRC, or a similar form created by the employer, to document the “behavior, physical signs, and evidence” to support the determination that there is reasonable suspicion that an employee is under the influence of cannabis during working hours.  Notably, the sample Reasonable Suspicion Observation Report is not specific to cannabis and contains numerous detailed recommended practices and procedures to follow, including a list of relevant physical symptoms to assess.
    3. Maintain a “Standard Operating Procedure” which identifies a process for completing a Reasonable Suspicion Observation Report.
  • Employers may use a “cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.”
  • The Guidance reaffirms that NJCREAMMA contains a carveout for employers who are “subject to the requirements of a federal contract” and for whom there would be a “provable adverse impact” if they had to comply with the law.

What should employers do now?

All New Jersey employers should carefully review the Guidance and update their current drug testing and substance-free workplace policies and procedures with counsel to ensure compliance with the Guidance.  Employers should also either implement the CRC’s sample Reasonable Suspicion Observation Report or create their own for use in connection with enforcing substance-free workplace policies.  Finally, employers should identify and train employees who can determine suspected cannabis impairment during work hours or use a third-party contractor.